Search Engine Law / 2004-2010

The IFPI sent a DMCA takedown notice
to Google demanding that
the company not only stop linking to URLs specified in the
notice, but to block any link to The Pirate Bay!

"In light of the serious violations
of copyright facilitated by The Pirate Bay service, and in
accordance with Google's policies (see http://www.google.com/dmca.html
andhttps://www.google.com/support/websearch/bin/answer.py?answer=58&ctx=sibling)
we are asking for your immediate assistance in removing from
your index, or otherwise disabling access to via your search
engine, URLs linking to the website for The Pirate Bay including
but not limited to the URLs specified in the attachment to this
notice."

The notice also said, that the IFPI is not responsible for
detecting infringing material, thus insinuating that this is
Google’s job!

7/2010 - Lex Google Street
View?

The justice ministers of Germany's 16 states have agreed to support
a legal initiative

to extend laws protecting Germans' right to
privacy to cover use of their own image and that of their homes in
online street panoramas. The
proposed German law

is directly aimed at services
like Google Street View and

would
amend Germany's Federal Data Protection Act to make it illegal to
publish databases of street images linked to their geographic
coordinates without first blurring faces and car registration plates
in the images. It would also make it illegal to store the raw,
unblurred image data for more than a month after first publication.

In the first click fraud lawsuit to be filed against Google since
2006, 123 Lock and Key has claimed the search giant charged it for
paid-search clicks allegedly made by a competitor.

123
Lock says in its court papers that it began advertising with Google
October 12, 2009. From October 2009 to March 2010 it received
around 15 clicks a day. Around 80% of the people who clicked
through followed up with a phone call, according to the lawsuit. In
March 2010, 123 started getting charged for at least 100 to 150
clicks a day. The clicks never converted into phone calls. 123
claims it has provided Google with irrefutable evidence about the
click fraud. Google refused to recognize the evidence.

In June 2010, Google admitted that the cars it
uses to gather
Street
View pictures have collected private information from
unencrypted wireless networks for years, including passwords and
extracts of the content of email messages. Google asserts that the
collection was inadvertent. Pablo Chavez, Google's director of
public policy, explained in a

that the
Street View vehicles gather network information such as wireless
addresses broadcast by WiFi routers "to improve the accuracy of the
location-based services, such as Google Maps or driving directions."

Van Valin was the first,
but not the last to file a class action complaint accusing Google of privacy invasion.

The big question in all these lawsuits: How can the plaintiff
show that any of its specific data was recorded by Google, and that
any harm came to him because of it.

Google filed a motion June 9 to
consolidate all U.S. suits and
move them to federal court in
San Francisco.

5/2010 - Privacy Officials
criticize Google

Privacy watchdogs from 10 countries (among them UK, France,
Germany, Israel, Canada, New Zealand) havewritten to Google to protestabout the
company’s disregard for data protection laws. The letter
especially criticizes the way Google Buzz was introduced: "...we
are increasingly concerned that, too often, the privacy rights
of the world’s citizens are being forgotten as Google rolls out
new technological applications. We were disturbed by your
recent rollout of the Google Buzz social networking application,
which betrayed a disappointing disregard for fundamental privacy
norms and laws. Moreover, this was not the first time you have
failed to take adequate account of privacy considerations when
launching new services. ...

In essence, you took Google Mail (Gmail), a private, one-to-one
web-based e-mail service, and converted it into a social
networking service, raising concern among users that their
personal information was being disclosed. Google automatically
assigned users a network of “followers” from among people with
whom they corresponded most often on Gmail, without adequately
informing Gmail users about how this new service would work or
providing sufficient information to permit informed consent
decisions. This violated the fundamental principle that
individuals should be able to control the use of their personal
information. ...

It is unacceptable to roll out a product that unilaterally
renders personal information public, with the intention of
repairing problems later as they arise. Privacy cannot be
sidelined in the rush to introduce new technologies to online
audiences around the world..."

And how should Google behave in the future:

"We
therefore call on you, like all organisations entrusted with
people’s personal information, to incorporate fundamental
privacy principles directly into the design of new online
services. That means, at a minimum:

collecting and
processing only the minimum amount of personal information
necessary to achieve the identified purpose of the product
or service;

providing clear and
unambiguous information about how personal information will
be used to allow users to provide informed consent;

creating
privacy-protective default settings;

ensuring that privacy
control settings are prominent and easy to use;

ensuring that all
personal data is adequately protected, and

giving people simple
procedures for deleting their accounts and honouring their
requests in a timely way.

In addition to
respecting these broad principles, we also expect all
organisations to comply with relevant data protection and
privacy laws."

5/2010 - The future of
Google's image search in Germany

The German Federal Supreme Court has
ruled that Google’s image search results do not infringe
copyright law. So displaying thumbnail images is legal! So far
we only have the
press release. It is not quite clear yet, how the court
reached that decision. The main reason for the finding was that
the suing artist had not used a simple technical measure (robots.txt)
to stop Google from indexing his website. Judging from the press
release und contrary to some news reports the court did not find

that this amounts to consent to the
use of images, but instead came up with another legal twist. But
we wont know for sure untill we have the reasoning of the court.

The verdict is also
not the end of the discussion about Google Image Search in
Germany. There is another case pending in Hamburg, in which a
work has been published online by third parties without the
artist’s permission. Following the reasoning of the ECJ AdWords
decision, the German Federal Supreme Court hinted that Google
could only be liable if it was informed of the copyright
infringement and did not act.

The
Third Circuit has reinstated a lawsuit that the Borings filed
against Google after a driver for its Street View service took
photographs of their home. The court upheld the lower court’s
decision tossing most of the claims, but said the court erred on
the trespass claim: “The Borings have
alleged that Google entered upon their property without
permission. If proven, that is a trespass, pure and simple,” the
3rd U.S. Circuit Court of Appeals said. “It was thus improper
for the District Court to dismiss the trespass claim for failure
to state a claim.” But the Court hinted that Aaron and Christine
Boring may only be able to wrest $1 in damages from the search
company - unless they can prove that they were actually harmed in
the moment the Google driver lingered on their property.

2/2010 - Great Britain:
Protection of search engines
from liability for copyright
infringement

There are discussions in Great
Britain about creating a new exemption from copyright law for search
engines that create copies of web pages in order to perform their
search duties (see
Outlaw).
The
proposed amendment:

"Protection
of search engines from liability for copyright
infringement

(1)

The
Copyright, Designs and Patents Act 1988 is amended
as follows.

(2)

After
section 116F (as inserted by section (Compulsory
licensing of recorded music to be made available via
the internet)) insert—

"116G

Protection of search engines from liability for
copyright infringement

(1)

Every
provider of a publicly accessible website shall be
presumed to give a standing and non-exclusive
license to providers of search engine services to
make a copy of some or all of the content of that
website, for the purpose only of providing said
search engine services.

(2)

The
presumption referred to in subsection (1) may be
rebutted by explicit evidence that such a licence
was not granted.

(3)

Such
explicit evidence shall be found only in the form of
statements in a machine-readable file to be placed
on the website and accessible to providers of search
engine services.

(4)

A
provider of search engine services who acts in
accordance with this section shall not be liable for
any breach of copyright in respect of the actions
described in subsection (1).""

2/2010 - Google Tax in
France?

The so
called Zelnick Report, financed by the French government
recommends that big advertising companies like Google
and Yahoo be taxed. The tax would kick in anytime an ad
is clicked in France regardless of where the company is
based. This concept is likely to create all kinds of
legal and technical issues. With the expected revenue of
up to $ 28 million France wants to help the struggling
music and publishing sector. The Report blames Google
for the troubles, arguing the search engine profits from
works produced by content providers and doesn’t give
anything back.

Google has been hit
with antitrust complaints in Germany from newspaper and
magazine publishers (Federation of German Newspaper
Publishers (BDZV) and the Association of German Magazine
Publishers (VDZ)) who want the company to pay for using
article snippets in its news service and search results.
The publishers also complain about a lack of
transparency in the way Google presents its search
results.

According
toGeek
Hans-Joachim Fuhrmann, a
spokesman for the German
Newspaper Publishers
Association, said the Web sites
of all German newspapers and
magazines together made 100
million euros, or $143 million,
in ad revenue, while Google
generated 1.2 billion euros from
search advertising in Germany.
“Google says it brings us
traffic, but the problem is that
Google earns billions, and we
earn nothing,” Mr. Fuhrmann said.

Well, sound like the Rupert
Murdoch idea: We have no clue how to innovate our
business model, so let’s try to “extort” money out of
Google.

Ciao claims its contract with
Google unfairly limits its own ability to sell
advertising and that it lacks transparency because it
doesn't give the company the ability to review if ad
revenues paid by AdWords are correct.

Euro-Cities objects to Google’s
practice of offering free online mapping services.
Letting just anyone embed Google maps in their sites is
anti-competitive and killing its own business.

A work
is now included in the settlement only if, by January 5,
2009, it has been registered with the United States
Copyright Office, or published in Canada, the United
Kingdom, or Australia. This addresses concerns expressed
e.g. by the Frenchand German government.

As in
the original Settlement Agreement, the ASA provides that
Google may make Display Uses of Books that are
Commercially Available only after the Rightsholders
affirmatively authorize Google to do so. Although Google
is authorized by default to make Display Uses of Books
that are not Commercially Available, the Rightsholder
can turn those uses off at any time.The ASA
clarifies the definition of “Commercially Available.”
Under the amended definition, a Book is categorized as
Commercially Available, and thus will not be displayed
without explicit permission, if new copies are available
for purchase by consumers in the United States, Canada,
the United Kingdom, or Australia from sellers anywhere
in the world.

Google
has agreed to give the Book Rights Registry (the “Registry”)
sixty days’ notice after Google classifies a Book as not
Commercially Available before it makes any Display Uses
of that Book.

The
proposed Final Judgment and Order of Dismissal provides
that the Court’s approval of the settlement does not
provide any immunity from the antitrust laws, such as
via the Noerr-Pennington Doctrine. This might enable the
District Judge and the DOJ to not address the antitrust
concerns at this point, but instead wait how the market
develops and act later (see Picker,
Accessing Competition Issues in the Amended Google Book
Search Settlement).

The ASA
now provides that the Registry’s Charter will ensure
that an independent fiduciary will be delegated the
responsibility to represent the interests of the
Rightsholders of unclaimed Books and Inserts with
respect to the exploitation of their works under the ASA.

The ASA
also changes the provisions relating to the use and
disposition of funds generated by a Book whose
Rightsholder has not made a claim. Now, the Registry
will hold these funds, for the benefit of that
Rightsholder, for at least ten years (extended from five
years under the original Settlement Agreement). ASA §
6.3(a)(i)(1). Beginning five years after the Effective
Date, subject to the approval of the fiduciary, the
Registry may use 25% of all funds earned in any one year
that have remained unclaimed for at least five years for
the sole purpose of locating the Rightsholders of
unclaimed works. ASA § 6.2(a)(i)(2).

The Registry still has
not the power to grant a similar license to any other company
that might want to make the same kinds of uses that Google
will be allowed to make under the settlement.

U.S. District Judge Denny
Chin granted
preliminary approval for the agreement and
ordered that groups will have until Jan. 28 to file
objections with the court. The fairness hearing will be
held on Feb. 18, 2010.

The South Dakota Supreme
Court upheld a trial court's decision that granted a motion
for a new trial alleging jury misconduct.

The plaintiff had claimed
that the seat belts unlatched during a deadly accident
because they were negligently designed. He brought suit
against the manufacturer Takata Corporation and its American
Subsidiary, TK Holdings, Inc. Prior to the trial the then
prospective juror Flynn conducted two quick Google searches,
one for Takata, one for TK Holdings. It was revealed to him
that Takata is a seat belt and airbag manufacturer and that
TK Holdings is the American subsidiary of Takata.

During the trial evidence
was presented that Takata had notice its seat belts were
defective. At least four drivers claimed their seatbelts had
come unbuckled during accidents. Ten other lawsuits had been
filed against Takata.

During deliberation,
juror Flynn told another juror about his web search. He said
he did not find any information on other lawsuits during his search. Three other
jurors heard the exchange. The jury finally reached its
verdict for the defense.

Following a motion by the plaintiff,
the trial court set aside the verdict on finding that one juror
had
introduced extrinsic evidence into deliberation that
prejudiced the jury and swayed the outcome. Extrinsic
evidence includes "knowledge relevant to the facts in
issue not obtained through the introduction of evidence but
acquired prior to trial."

The Supreme court agreed,
but did not announce a "hard and fast rule that all such
types of internet research by a juror prior to trial without
notice to the court and counsel automatically doom a jury's
verdict. Rather, as we do in such cases, we give deference
to the trial court, which had the distinct advantage of
being present throughout the nineteen-day trial."

Hanspeter Thür, the
federal data protection and information commissioner,
brought suit against Google over an alleged failure to
protect people's privacy on its Street View website. In a
statement he said: "Numerous faces and vehicle number
plates are not made sufficiently unrecognizable from the
point of view of data protection, especially where the
persons concerned are shown in sensitive locations, e.g.
outside hospitals, prisons or schools... The height from
which the camera on top of the Google vehicle films is also
problematic. It provides a view over fences, hedges and
walls, with the result that people see more on Street View
than can been seen by a normal passer-by in the street."

Prior to taking Google to
the country's Federal Administrative Court Thür had asked
Google to take various measures, but the company had not
complied with the request. Thür inter alia demanded that Google develop
a better system for blurring faces and licence plate numbers
to guarantee privacy protection.

A criminal investigation
has been launched against Google in Hamburg, Germany,
because of its YouTube web site. Jens Schippmann, attorney
of a group of several German independent labels, publishers
and artists has filed claims with the public prosecutor's
office. He alleges that Google didn't respond to requests to
take down more than 8000 infringing videos and that users
would utilize YouTube as a kind of "covert file-sharing
platform".

It is still unclear if
the ongoing investigation will ever lead to a court case.

Google is suing Pacific WebWorks
over the creation of scam ads
("Use Google to Make 1000s of
Dollars!" or "Easy Cash with
Google: You Could be Making up
to $978 a Day Working from Home!")
that have fooled thousands of
job hunters into thinking they
were applying for work with the
internet giant.

Because the logo is displayed
prominently on the ads, Google
claims the unaffiliated websites
are misusing its trademark to
deceive unsuspecting consumers,
many of whom have turned to
Google to lodge complaints and
ask for refunds. According to
Google,

consumers
who sign up for these products
either receive nothing except
fraudulent credit card charges,
or DVDs with computer viruses.

After the settlement in the class
action lawsuit between Google and the Authors Guild and the
Association of American Publishers was announced last October,
nearly 400 parties have filed positions on the proposed settlement,
with the majority of them opposing the deal. Amazon, Yahoo and
Microsoft e.g. fear that the deal would give Google too much control
over orphan works. Google co-founder Sergey Brin reacted to the
critics of the settlement, saying that Google was the only company
that has stepped up to scan the millions of out-of-print books and
make them available to users. Companies that are complaining are
doing nothing for them. (see
Google Co-founder Sergey Brin Fires Back at Google Book Search
Critics)

The German Governement has lodged
an objection to the deal between Google and the Authors Guild
alleging that it would undermine the rights of German authors within
the US. In its weekly podcast, German Chancellor Merkel said there
are considerable dangers for copyright protection on the Internet. "That’s
why we reject the scanning in of books without any copyright
protection — like Google is doing. The government places a lot of
weight on this position on copyrights to protect writers in Germany."

The European Commission has
called for a "European solution" to book digitisation. But a
cooperation with Google might be possible.

"Digitisation of books is a task of Herculean proportions which
the public sector needs to guide, but where it also needs
private-sector support. It is therefore time to recognise that
partnerships between public and private bodies can combine the
potential of new technologies and private investments with the rich
collections of public institutions built up over the centuries. If
we are too slow to go digital, Europe's culture could suffer in the
future,"

Google has agreed to change the
proposed settlement after the Department of Justice
said it opposed the deal: "A
global disposition of the rights to millions of copyrighted works is
typically the kind of policy change implemented through legislation,
not through a private judicial settlement. If such a significant (and potentially beneficial)
policy change is to be made through the mechanism of a class action
settlement (as opposed to legislation), the United States
respectfully submits that this Court should undertake a particularly
searching analysis to ensure that the requirements of Federal Rule
of Civil Procedure 23 ('Rule 23') are met and that the settlement is
consistent with copyright law and antitrust law. As presently
drafted, the Proposed Settlement does not meet the legal standards
this Court must apply."
But the DOJ also stressed the positive effects of the greement:
"The Proposed Settlement has the
potential to breathe life into millions of works that are now
effectively off limits to the public. By allowing users to search
the text of millions of books at no cost, the Proposed Settlement
would open the door to new research opportunities."

The fairness hearing was
postponed and New York District Judge Denny Chin ordered the parties
to present the revamped deal to the court Nov. 9. The final hearing
could happen as soon as late December or early January.

Paul Aiken, executive director of
the Authors Guild, said in an interview that “the core agreement is
going to stay the same.”

It's my guess that the revised
settlement agreement will

exclude foreign authors and
publishers from the class so that the settlement has no impact on
them. This would eliminate many objections raised by the German and
French government. Let's be honest, Book Search is a service for
people in the US. I think Google can live with excluding works from
foreign authors, most of them probably not written in English.
Google was criticised for not having translated the settlement
agreement. Some authors saw a violation of an international treaty,
the RBÜ. All these objections could easily be wiped away (but there
would still be one problem: Google has already scanned many books of
foreign author's. What would happen with them? Will Google only continue showing snippets, claiming this to be fair use?).

explicitly give the book right's
registry the right to licence orphan works to Google's competitors.
Google might accept this as long as the registry is not allowed to
give competitors a better deal than itself for the next 10 years.

According to a high court judge in London,
Google is not the publisher of defamatory comments that appear in its search
results.

The case has been brought by London based
Metropolitan International Schools (MIS), which runs distance learning courses.
The school argued that postings in the forum of the website Digital Trends were
defamatory and that Google should be held liable because links to these postings
appeared in its search results and the snippets also consisted out of these
defamatory comments. MIS also asked the judge for an injunction, preventing the
display of search results that suggest it is involved in scam, without the need
to provide Google with the URL of the infringing content in the future.

The court did not agree: Google is merely a
conduit to information, not a publisher in its own right: "When a snippet is
thrown up on the user's screen in response to his search, it points him in the
direction of an entry somewhere on the Web that corresponds, to a greater or
lesser extent, to the search terms he has typed in. It is for him to access or
not, as he chooses. It is fundamentally important to have in mind that the Third
Defendant has no role to play in formulating the search terms. Accordingly, it
could not prevent the snippet appearing in response to the user's request unless
it has taken some positive step in advance. There being no input from the Third
Defendant, therefore, on the scenario I have so far posited, it cannot be
characterised as a publisher at common law. It has not authorised or caused the
snippet to appear on the user's screen in any meaningful sense. It has merely,
by the provision of its search service, played the role of a facilitator."

This is the first judicial analysis of search
engine liability for defamation under UK law. Although the decision is brilliant
for search engines and as a Google spokesman put it "reinforces the principle
that search engines are not responsible for content that is published on
third-party web sites", an important question remains unanswered:

In the MIS case, Google removed the links to
the defamatory comments after notification. The judge hinted that there still is
a responsibility of search engines to take down content after receiving a
complaint about libellous material. He did not say how fast search engines must
act and how effective the take down system must work: "There are some steps
that the Third Defendant can take and they have been explored in evidence in the
context of what has been described as its "take down" policy. There is a degree
of international recognition that the operators of search engines should put in
place such a system (which could obviously either be on a voluntary basis or put
upon a statutory footing) to take account of legitimate complaints about legally
objectionable material. It is by no means easy to arrive at an overall
conclusion that is satisfactory from all points of view. In particular, the
material may be objectionable under the domestic law of one jurisdiction while
being regarded as legitimate in others. In this case, the evidence shows that
Google has taken steps to ensure that certain identified URLs are blocked, in
the sense that when web-crawling takes place, the content of such URLs will not
be displayed in response to Google searches carried out on Google.co.uk. This
has now happened in relation to the "scam" material on many occasions. But I am
told that the Third Defendant needs to have specific URLs identified and is not
in a position to put in place a more effective block on the specific words
complained of without, at the same time, blocking a huge amount of other
material which might contain some of the individual words comprising the
offending snippet. It may well be that the Third Defendant's "notice and take
down" procedure has not operated as rapidly as Mr Browne and his client would
wish, but it does not follow as a matter of law that between notification and
"take down" the Third Defendant becomes or remains liable as a publisher of the
offending material. While efforts are being made to achieve a "take down" in
relation a particular URL, it is hardly possible to fix the Third Defendant with
liability on the basis of authorisation, approval or acquiescence."

What also makes the decision a must
read, is the mentioning of several other lawsuits about search engine liability
in other countries, most of them even I had not heard about before:

Spain: decision of Mai 13, 2009, Palomo v. Google

"This was a recent case in the Court of First
Instance in Madrid on 13 May 2009: Palomo v Google Inc. The
complaint was in relation to search results providing hyperlinks to
sites carrying defamatory content. The claim was rejected and the
Third Defendant held not liable in law for disseminating third party
content. Reference was made to European legislation moving towards
the position that there should not be any obligation on Internet
intermediaries to supervise such content. Where "actual knowledge"
(in the sense defined above) has not been established, the law
provides for "exoneration from responsibility" on the part of
businesses offering intermediary services."

Laws on search engine liability in Bulgaria and Romania

"Bulgaria enacted an Electronic Commerce Act
in December 2006 which provides that an automated search engine
service shall not be liable for the contents of data obtained where
it has not (i) initiated the transmission of the data, (ii) chosen
the data recipient, or (iii) chosen or altered the data obtained.
This corresponds to the provisions of the Austrian amendment, to
which I have referred above.

Romania has also extended its law to provide
express protection for search engine services in Article 15 of Law
No 365 of 7 June 2002, dealing with Electronic Commerce. This
provides for protection if the search engine service was not aware
that the information in question was illegal, and not aware of any
facts or circumstances showing that the information could prejudice
the rights of a third party. If it is so aware, it may still be
protected if it acts rapidly to eliminate the possibilities of
access or to block its use. The search engine service is responsible
for the information when a public authority has determined that it
is illegal. There are similar limitations on liability to those I
have identified with reference to the Spanish law."

"Another recent example was the French
decision (Court of Appeal in Paris, 19 March 2009): SARL Publison
System v SARL Google France. The claimant sued over a defamatory "snippet"
raised by Google's search engine and a hyperlink to the primary site.
It was held that a search engine was not under any duty to assess
the lawfulness of the indexed website. To the extent that it
involves an indexing robot, and neither creates nor hosts the
disputed information, it was said that Google was not under any
automatic obligation to carry out monitoring. Furthermore, in view
of the considerable volume of information arriving each day on
Internet sites, the operator of the search engine was unable to
analyse the content made available to users via its indexes."

Netherlands: Decision of April 26, 2007, Jensen v. Google

"There was also a Dutch decision in the
District Court of Amsterdam on 26 April 2007: Jensen v Google
Netherlands. An attempt was made to obtain an injunction to prevent
Google from displaying the search results displayed on a search of the
claimant's name (since there were a number of sex websites). The court
observed that:

"Google has made it sufficiently clear that it
has no (preventive) involvement with or influence over the contents
of the links to the websites and with or over the contents of the
websites which are automatically obtained as search results after
entering of, in the case in hand, the search term Jensen + Urmia +
Brigitte."

Attention was drawn to the "technical,
automatic and passive nature" of the technical processes involved (i.e.
of crawling, index-linking and ranking). Google was not expected to
accept responsibility for the outcome of a search instruction or the
content of the search results. It is to be noted, however, that the
court relied in part upon the lack of knowledge on the part of Google
that the information was wrongful."

Italy's antitrust watchdog (Autorita Garante della
Concorrenza e del Mercato) is investigating allegations by an Italian
associationof news publishers (Federazione
Italiana Editori Giornali (FIEG)) that Google Italy is discriminating against
newspapers that don't want their content linked on Google's news site by also
dropping them from its search engine. The members of the association probably
should have talked to an search engine optimizer first: They probably used
robots.txt to get excluded from Google News. Because search engine spiders,
including the Googlebots, don't distinguish between indexing for news and web
search, that's the reason why the sites of the newspapers automatically also
disappeared from the web search.

Google Suggest makes searches more convenient
and efficient by auto-completing queries as users type them into the search box.
In France, the two companies Direct
Energie and CNFDI
found out, that when people started searching on their company names, the first
suggestion was their company name followed by the word "arnaque," which means "scam."
Google Suggest works by finding the most common searches, so this only means
that most of the people searching for these companies did this in connection
with the word arnaque. Nethertheless both sued Google.

Direct Energie won. The judge in this case
probably did not understand, how Google Suggest works. He complained that the
list offered by Google was neither alphabetically nor sorted accordingly to the
highest number of results. So he ordered Google to change the results!

CNFDI lost. The judge in this case understood
how Google's algorithm works and came to a reasonable decision. He found that
the fact that many people were questioning whether CNFDI was a scam was
potentially useful information, and thus not libelous by itself. Forcing Google
to remove such a suggestion would be too big a burden on free speech.

The Making Home Affordable
Program aims at helping eligible home-owners to refinance or modify their
mortgages, so that they can afford to stay
in their homes. The
official website (http://makinghomeaffordable.gov)
provides information about the program. Starting in April 2009 misleading ads
appeared on search engines. When consumers searched for "making home affordable",
ads were shown that displayed the web address
http://makinghomeaffordable.gov. But when
they clicked on the ad, they were not directed to the government web site, but
instead to another web site offering loan modification services for a fee. The
FTC filed a lawsuit against unknown parties, because the defendants are not
identified in the ads. At their request, the District Court for the District of
Columbia issued a temporary restraining order that requires four search engine
providers (among them Google and Yahoo) to identify those who placed the ads and
to refuse ads containing
http://makinghomeaffordable.govor any
other domain name containing .gov.

On his web
site,
Joris van Hoboken mentiones an
interesting preliminary
judgement of the court in
Amsterdam. A snippet in the
Google result list suggested
that the plaintiff was bankrupt,
resulting in telephone calls
from several users and a
regional newspaper. Usually one
would expect a lawsuit against
Google, but in this case, the
plaintiff went after the web
master, who had written a text
that was completly legal and
tried to hold him responsible
for the misleading combination
of the sentences by Google. The
court agreed, because:

-
plaintiff had suffered damages
by the snippet

-
plaintiff had informed the
defendant about the problem and
asked him to fix it

-
defendant had optimized his web
site for search engines

-
defendant could easily have
changed his web site so that the
snippet would also have changed.

What about
freedom of expession? If, at
all, one can be held resonsible
for the snippet, it is Google.
The court can't punish a web
master, only because he
optimizes his web site and has
some knowledge about the
functioning of search engines.
He has no direct influence on
the wording of the snippet. Even
if he had changed his web site,
there is no guarantee that the
snippet would have changed too.
If he had written "unable to pay
his bills" instead of "bankrupt",
where would be the advantage in
a snippet suggesting the
plaintiff was unable to pay his
bills. If the defendat had to
name the plaintiff in his text (for
what reason whatsoether), how
can a judge say that this has to
be changed because of the
conduct of an unrelated company
(Google)? The defendant has
appealed the decision.

6/09 -

Inventor of
vibrating toilet seat sues
Google

Johnny I. Henry, an
inventor of the vibrating toilet
seat (which was featured on the
Jay Leno show in November 2008),
filed a lawsuit against Google,
Inc. and AOL, claiming that
search results delivered by
Google and hosted by AOL are
defamatory. His photo was
pictured on several web sites
under the title "N-I-G-G-E-R
invents vibrating toilet seat."
The complaint says that due to
the web sites listed on search
engines, he will incurr
psychological damage and will
probably suffer financial loss
once his invention comes to the
market

The extreme derogatory
nature of these web sites
have committed a gross and
negligible offense, not only
to myself but to our newly
elected president and first
lady, Mr. Barack Hussein
Obama and Mrs. Michelle
Obama. I believe that
without a shadow of a doubt
that this type of racist
negative behavior is
directed at black people as
a whole as well as all good
hearted people that mean
good throughout this country
and world.

Section 230 of Title
47 of the United States Code exempts service providers like Google from
liability for content posted by third parties. The lawsuit will almost certainly
be dismissed on that basis.

6/09 -

Microsoft files click-fraud
complaint

Microsoft has filed a civil complaint in United States District Court in Seattle
over click fraud and is seeking at least $750,000 in damages.

The complaint alleges, that by engaging in a widespread scheme that generated
invalid clicks on links to online ads that were displayed in response to search
requests for the game World of Warcraft
and auto insurances on Microsoft’s network, defendants disrupted the advertising
campaigns of their competitors, obtained increased user traffic for their own
ads at a much lower cost than they could have otherwise, and caused substantial
damages to Microsoft, which has lost revenues and expended substantial money and
resources to remedy the effects of defendant’s conduct. According to Microsoft,
the company credited nearly 1,5 million US-dollar to auto insurance and WoW
advertisers in direct response to the click fraud.

The
complaint gives an example for click fraud: "An advertiser in a
particular industry such as auto insurance that has a sponsored site
appearing low on the result list could generate repeated clicks on the
higher-ranked sponsored sites of its competitors to the point that the
competitors’ advertising budgets were exhausted or the performance of their
sponsored sites was dramatically lowered. This would cause the
higher-ranking sponsored sites to drop off the results page or decrease in
the ranking, and the perpetrator’s lower-ranking sponsored site to rise to a
higher position in the sponsored site list."

A class action law suit against Google will
only make lawyers rich and leave advertisers with advertising credit. Want proof?
Google has settled a lawsuit filed by advertisers (CLRB Hanson Industries of
Minnesota and Howard Stern of New Jersey) who claimed they were charged for more
ads through the AdWords system than they had agreed to pay. The lawsuit, filed
in 2005 in Santa Clara Superior Court in California, sought damages, restitution,
and injunctive relief to remedy Google’s practice of (1) charging its AdWords
advertisers up to 120% of their per day daily budget on any given day (Plaintiffs’
“120% claims”); and (2) charging AdWords customers who paused their campaigns
more than their per day Daily Budget times the number of days their campaigns
were not paused during the billing period.

Under the terms of the proposed Settlement
Agreement, Google has agreed to pay $20,000,000 in a combination of cash and
AdWords Credits. Both plaintiffs will receive $20,000; Google agreed to pay
their lawyers more than $5 million. Other affected advertisers will get AdWords
credits. Google argued that it had only overcharged advertisers to make up for
days when it under-delivered ads, but still chose to end the litigation with a
settlement. A spokesman said: “Google believes the claims are without merit, but
we are pleased to have the litigation behind us and to move forward with our
business objectives.”

A judge has dismissed a lawsuit
filed by a Pennsylvania family against Google. Plaintiffs
had alleged invasion of privacy, trespass and unjust
enrichment, because Google had published photos of their
residence in its Street View feature. The street, in which
the home of the plaintiffs is located is marked as "Private
Road". Aaron and Christine Boring sued for compensatory and
punitive damages, seeking more than 17.000 $.

The judge dismissed the invasion
of privacy claim, because he saw no facts that were
sufficient to establish that the intrusion could be expected
to cause "mental suffering, shame or humiliation to a person
of ordinary sensibilities." "While it is easy to imagine
that many whose property appears on Google's virtual maps
resent the privacy implications, it is hard to believe that
any – other than the most exquisitely sensitive – would
suffer shame or humiliation", the judge said. He deemed the
contended suffering to be less severe because plaintiffs had
failed to take readily available measures to protect their
own privacy. They could have used a procedure provided by
Google to remove the images from Google Street View.
Unfortuantely the judge did not tell, why the plaintiffs
could be refered to use Google's opt-out system, if the
defandant was in fact violating their privacy rights. Seems to me
like a circular argument.

As for the other claims,
plaintiffs failed to allege a duty of care, that Google
could have violated. They also could not support their
contention that their property decreased in value.

So, according to the judge, the plaintiffs have
failed to state a claim under any count.

The couple already aksed the judge to reconsider their dismissed lawsuit.
Some excerpts from their motion for reconsideration:

"This case is about every little guy, once again being trampled upon
by the big shoe of big business. With nowhere to turn but the American Courts,
he is cast away to endure the pinpricks of trespass that bleed our American
liberty to death. Whether the trespass is by a foreign king, or the royalty of
big business, does not matter. The Borings, such as our American forefathers in
millennia past, are entitled to proclaim, 'Google, Don't Tread On Me.'"

"The Borings
should not need to post gates and guard dogs, nor should
they need to institute batteries of cannons in their
driveways. They should have the full power and authority of
our American Courts at their defense. But, now, this Court
has left the American right of private property helpless,
injured, and without remedy."

"This Court
tells Google that it is okay to enter onto a person's
private property without permission. I would not teach that
rule to my child. This Court's ruling makes our private
property a Google Slave; our property is no longer our own:
it is forced to work for another, against its will, without
compensation, for the profit of another. The Federal Court
should free slavery, not create it."

"Google's
defense is that the grass will stand back up, and there was
no gate or guard dog. Or, possibly, that you can pick the
fruit off that poison tree by: a) stopping what you are
doing; b) going to a computer, if you know how to use one;
c) accessing a computer at the cost of doing so; d)
accessing the Internet at the cost of doing so; e)
researching and becoming familiar with the Google program by
going onto their website properties; f) removing the
pictures Google acquired while trespassing on your property;
and g) not pursuing the happiness you might otherwise be
finding. All while they directly and indirectly advertise to
you. The more Google injures, the more money they make."

3/09 -

Does Google violate antitrust laws by eliminating competition?

Vertical search is an expanding market where a lot of money can be made. The
term "vertical search" refers to more or less specialized search engines for
specific topics, such as Google News for news or YouTube for videos. There are
already more searches conducted at YouTube or eBay than at Yahoo in several
countries. TradeComet also operates a specialized search engine for B2B goods
and services. To promote its web site TradeComet used the Google AdWords program
and was quite successful at the beginning. Officials even meet with Google to
further increase the effectiveness of the ad campaigns. In December 2005
Google praised Trade Comet as "site of the week." In May 2006, however, Google
raised the minimum bids for keywords on which TradeComet bid. Instead of 5-10
cents, several keywords were only available at a minimum price of 5-10 dollars.
These ad rates were way too expensive for the plaintiff to continue promoting
itself within Google's online marketing network. So this move strangled
plaintiffs primary source of search traffic, resulting in substantial drops in
traffic and revenue (about 90%). Google explained to TradeComet that the
increase was due to its poor landing page quality.

TradeComet alleges that Google manipulates its auctions to favor certain
advertisers like business.com over others. Google establishes minimum pricing
thresholds that can differ by advertisers based on criteria , such as "Landing
Page Quality", that is exclusively in Google's control. It is impossible to know
how Google actually picks the winners and losers of its ad actions. In the eyes
of TradeComet officials, Google learned that its search engine was a potential
competitor. The lawyers stated that, “Google understood the threat that vertical
search engines posed to its business mode.” Hence Google increased the bid rates
for advertisement for the company by as much as 10,000 percent.

The suit could be a
real danger to Google. So far, no court has said that Google has a monopoly. But
the courts only considered an online, not a smaller search advertising market.
After the aquisition of DoubleClick Google has strenghtened its position in the
online advertising market and remarks by the Federal Trade Commission lead to
the conclusion that the relevant market indeed is sponsored search advertising
only. And on that market, Google probably has a monopoly share.

), District Court Judge
Jeremy Fogel in San Jose ruled that the federal Communications Decency Act
immunizes Google from liability for allegedly displaying fraudulent ringtone ads
created through the AdWords platform. Goddard had claimed that she was billed
for a ringtone subscription after entering her cell phone number at a fraudulent
web site that she found via an AdWords ad. She sought to hold Google
responsible. But the court found that the Federal Communications Act protects
Google from any liability for the ads, noting in the written decision,
"Providing third parties with neutral tools to create Web content is considered
to be squarely within the protections of (the law). Even if a service provider
knows that third parties are using such tools to create illegal content, the
service's provider's failure to intervene is immunized" so long as it does not
encourage or require their users to post actionable information online. Fogel dismissed the
case without prejudice, effectively allowing Goddard to file an amended
complaint at a later date. Goddard can only win the lawsuit by establishing
Google's involvement in creating or developing the AdWords.

). It is expected that
it will take the ECJ about two years to decide the issue. But the French
case, brought by Louis Vuitton, is already pending for eight months. So my guess
is, we can expect the final word on adwords at the beginning of 2009.
The decision will be crucial for Google and for the keyword advertising
business in Europe.

In the second case before the BGH, the plaintiff, PCB Pool, objected
against the use of pcb as adword. But according to the BGH there was no
trademark infringement. PCB is an acronym of printed circuit board and the
keyword used, descriptive. So the BGH overturned a lower court's ruling.

The finding in the third case could be the most interesting one. Beta
Layout had complained about the use of its company name as keyword. The
protection of company names does not have its roots in EU law, so the BGH
could decide the case. According to the press release he found that there
was no trademark violation because internet users are capable of
distinguishing between ads and normal search results.

Martin Leguizamon, 48, a Buenos
Aires attorney, has taken on the
local versions of Yahoo und
Google on behalf of many of
Argentina's best-known actors,
models, sports personalities and
judges. Initially he represented
a group of about 70 fashion
models and asked the search
engines to block all search
results with their names with
the intent of blocking
pornographic web sites that used
the models' pictures. He
succeeded in getting restraining
orders. Yahoo and Google were
ordered to censor search results
from their Argentine sites for
information about the
plaintiffs. Then other public
figures - including Maradona and
the high-profile judge María
Servini de Cubría - have sought
out the same lawyer to
successfully block search
results about them as well. In
some cases, the restraining
orders require Yahoo and Google
to censor results for certain
URLs or keywords. In other
instances they call for broad
restrictions such as censorship
of defamatory or scandalous
material.

Yahoo first tried to satisfy the
orders by blocking content on a
site-by-site basis. But as the
scope of the orders grew, the
company couldn't satisfy the
courts. The fines pilled up, and
Yahoo has resorted to blocking
almost all sites involving the
celebrities in question. The
only exceptions are hyperlinks
to major news media sites. If a
user enters the name Maradona
e.g., he will see a disclaimer
in Spanish stating: "Due to a
court order requested by private
parties, we find ourselves
obliged to temporarily suspend
all or some of the results
related to this search."

So far, Google Argentina isn't
filtering as extensively as
Yahoo! and hopes for successful
appeals and the legislator to
change the law.

According to the Court Google
infringes the making available
right of the copyright owner.
The court examines several
exceptions to the copyright
exclusivity, e.g. the right of
citation, but finds that no
exception applies.

Earlier court decisions on
thumbnails in Germany discussed
the possibility of an implied
consent by the copyright holder.
But this case was different: The
picture, which Google used to
create the thumbnail, had not
been put on the web by the
copyright owner and he had also
not allowed the reproduction by
a third party. So there was no
basis for an implied consent.

The court then stressed the
importance of search engines for
the internet (although it said
that picture search is not as
important as web search), but it
also said that it was not up to
the court to invent new
copyright exceptions. It saw no
possibility to say that Google's
actions are legal.

12/08 -

Spain: Google
Cache is legal (the Megakini.com-case)

The plaintiff accused Google of
copyright infringement by
reproducing snippets from his
web site in the results page and
by making available cached
copies of his web site.

As to the snippets, the court
(Sentencia de la Audiencia
Provincial de Barcelona
(Section 15), of 17 September
17, 2008) concluded that they
are too short and thus not
infringing.

As to the cached copies the
court examined the exceptions to
the copyright holder's
exclusivity. The court doubted
that the exception of temporary
reproduction (Art. 31 I of the
Ley de Propiedad Intelectual /
Art. 5 I of the EU Copyright
Directive) applies, because the
copies Google uses for its
service exist for a longer time,
even if the original web site
has been removed or modified.
But the court did not make a
final decision on this subject.
Instead it looked at the three
step test (See e.g. Article 13
of TRIPs. It reads: "Members
shall confine limitations and
exceptions to exclusive rights
to certain special cases which
do not conflict with a normal
exploitation of the work and do
not unreasonably prejudice the
legitimate interests of the
rights holder.") and the US
fair use doctrine and found that
these principles should also
guide the interpretation of the
scope of the protection of
intellectual property rights in
Spain in order to avoid absurd
overextensions of the protection
of copyright owners. The court
than found that the Google Cache
is a socially tolerated use and
does not do any harm to the
copyright holder. But Google has
to comply with some basic
requirements. Here the court
refered to the caching safe
harbor in Art. 13 of the
E-Commerce Directive, (The
caching safe harbor does not
apply to the Google cache, but
the court assumed that these
requirements are also the limits
that a cache provider must
observe in order to respect the
integrity of the work and the
author’s right of making
available the work). So there is
no copyright infringement on the
condition that

(a) the provider does not modify
the information;

(b) the provider complies with
conditions on access to the
information;

(c) the provider complies with
rules regarding the updating of
the information, specified in a
manner widely recognised and
used by industry;

(d) the provider does not
interfere with the lawful use of
technology, widely recognised
and used by industry, to obtain
data on the use of the
information; and

(e) the provider acts
expeditiously to remove or to
disable access to the
information it has stored upon
obtaining actual knowledge of
the fact that the information at
the initial source of the
transmission has been removed
from the network, or access to
it has been disabled, or that a
court or an administrative
authority has ordered such
removal or disablement.

Quite an interesting ruling. But
I doubt that it will get much
approval. While the Hamburg
court in the thumbnail decision
said that it is not the task of
a court to invent new exceptions
to the copyright holder's
exclusivity, the Spanish appeal
court did just that by combining
fair use principles and
requirements of the
E-Commerce-Directive.

12/08

USA: Google Book
Search Settlement

Google and The Authors Guild,
the Association of American
Publishers said that they have
settled a book scanning lawsuit
for $125 million.
The
deal, which still needs approval
from a federal court in New
York, would clear the way
for the company to provide
easier online access to millions
of copyrighted books.

Google began scanning and
uploading books four years ago.
However, unlike other countries
where it only scanned books
fallen out of copyright, in the
USA it scanned books that were
still copyright protected and
made them available through its
book search program - enraging
publishers and authors. Three
years ago, the Authors Guild and
others filed a class action
lawsuit against Google Book
Search. As part of the agreement
Google will compensate them at a
minimum of $60 per work, costing
it up to $90m of the $125m deal.

Google:

With this agreement,
in-copyright, out-of-print books
will now be available for
readers in the U.S. to search,
preview and buy online —
something that was simply
unavailable to date. Most of
these books are difficult, if
not impossible, to find. They
are not sold through bookstores
or held on most library shelves,
yet they make up the vast
majority of books in existence.
Today, Google only shows
snippets of text from the books
where we don’t have copyright
holder permission. This
agreement enables people to
preview up to 20% of the book.

What makes this settlement so
powerful is that in addition to
being able to find and preview
books more easily, users will
also be able to read them. And
when people read them, authors
and publishers of in-copyright
works will be compensated. If a
reader in the U.S. finds an
in-copyright book through Google
Book Search, he or she will be
able to pay to see the entire
book online. Also, academic,
library, corporate and
government organizations will be
able to purchase institutional
subscriptions to make these
books available to their
members. For out-of-print books
that in most cases do not have a
commercial market, this opens a
new revenue opportunity that
didn’t exist before.

Parker claims
that by making cached copies of his websites available to their users, both
Yahoo and Microsoft republish his works in their entirety without his
permission. Accordingly, Parker has brought several claims against both
defendants, including direct copyright infringement, contributory copyright
infringement and vicarious copyright infringement. Sound
familiar? In
Field v. Google, Inc., the United States
District Court for the District of Nevada considered a case that is
strikingly similar to the present one: Field, an author of copyrighted works
published online at his website, sued Google in copyright for creating and
storing cached versions of his works as they appeared on his website. Field
was also aware that he could have opted out of being included in Google's
searches by including "no-archive" HTML "meta-tags" on his web page.
Nonetheless, he brought a claim of direct copyright infringement against
Google for violating his exclusive right to reproduce and distribute copies
of his works. Among other defenses, Google asserted that the plaintiff had
impliedly licensed Google to reproduce his work because he had consciously
chosen not to include the no-archive meta-tag on the pages of his website.
The court concluded that Google had sufficiently established the defense of
implied license.

The district court in Parker followed this reasoning.
From Parker's silence and lack
of earlier objection, the defendants could properly infer that Parker knew
of and encouraged the search engines' activity, and, as did the defendants
in Field, they could reasonably interpret Parker's conduct to be a
grant of a license for that use.

But in the end the Court did not dismiss the direct copyright infringement
claim, because the defandants allegedly have continued to display Parker's
works after the commencement of the lawsuit. This might constitute direct infringement,
because the licence might have been revoked.

In the last months Google has been taking photographs for its controversial
Street View feature in Germany. Several officials at both state and federal
level have issues with the project and a small town council leader Reinhold
Harwart "succeeded" in stopping Google in the northwestern German state of
Schleswig-Holstein. The town of Molfsee (pop. 5000) announced that Google
needed a permit to take pictures. Laws related to traffic and commercial
activities in public spaces would apply. "And when they ask for a permit, we
will say no", Hawart says. Although the cited laws are pretty much the same
throughout Germany, Google announced to stop taking pictures in
Schleswig-Holstein only. Google still argues that streets are public
property and that no permit is necessary and will probably continue to talk
to officials.

Google is expected to start Street View in Germany
very soon. Faces of people
and license plate numbers caught in the images will be blurred. The Street View button is already enabled in Germany for
testing!

Steven Silvers,
is the creator of animated characters known as "Googles," described as
"lovable, friendly four-eyed alien creatures that live on the planet of Goo"
that are used to "communicate to children in non-violent themes social
lessons, conceptual awareness and educational values, and give children of
today, visions of tomorrow." Silvers alleges that he developed the Googles
concept in the late 1970s, and began using the name as early as the
mid-1980s. In 1997, Silvers obtained the Internet domain name,
"googles.com".

Stelor, now the legal owner of the Googles mark, alleges that the Google
search engine (along with its related goods and services) "has become so
well-known... that it now overwhelms the public recognition of the "Googles'
trademark, domain name, and Website, and is preventing Stelor from
flourishing on the Web or entering new markets..." It further claims that
"Google's infringing use of the name 'Google,' which is substantially
identical to Silvers' 'Googles' mark, has caused, and will continue to
cause, 'reverse confusion' in that the consuming public will now falsely
believe that Stelor's goods and services, 'googles.com' domain name, and
Website, are connected, affiliated, associated, sponsored, endorsed or
approved by Google, and that Google is the source of origin of the 'Googles'
concept, books, music, 'googles.com' domain name, Website, merchandise, and
related goods and services..." Stelor now pursues the four-count amended
complaint, originally filed by Silvers against Google, alleging trademark
infringement under 15 U.S.C. § 1114, unfair competition under 15 U.S.C.
§1125(a), unfair competition under Florida law, and "cancellation of
Defendant's registration."

In September 2008 the United States District Court for the Southern District
of Florida denied Stelor Productions Inc.'s motion to compel defendan's
principals, Sergey Brin and Lawrence Page for deposition. Stelor had claimed
that only Page
and Brin have knowledge of (1) the background and evidence related to the
first commercial use of the Google mark, (2) the Google, Inc. applications
for trademark registrations, and (3) the statements made by the Google
principals under oath in support of those applications. Stelor
now must first take the deposition of Rose Hagan, Google's Rule 30(b)(6)
representative.

) claim they are; the
consequence would be that web site statistic programms, including Google
Analytics, are illegal if they store IP adresses.

Thilo Weichert, Privacy official in Schleswig-Holstein already
contacted several webmasters to inform them about the illegality of their
use of Google Analytics. So far he does not warrant fines (ULD:
Google Analytics - Verstoß gegen das TMG?

).

10/08 -

UK: Christian Institute / Google case settled out of court

In March, Google refused an ad from the Christian Institute, arguing it did
not allow the advertising of websites with "abortion and religion-related
content". The ad in question stated: "UK Abortion law - Key views and news
on abortion law from the Christian Institute - www.christian.org.uk". The
Institute sued Google in April, saying that its decision violated the
Equality Act of 2006 which prohibits discrimination based on religion in
providing goods or services.

Instead of fighting the case, Google settled out-of-court and agreed to
revise its policy so that religious entitities are now allowed to launch
advertising campaigns on abortion.

). The
commentators agreed that the principles were a good start for the discussion,
but also critized several aspects. Google said the principles are overly
burdensome and too broadly defined.

As in Europe, Google sticks to its opinion that the IP adress
is not a personally identifying information. The paper does not
differentiate between personally identifying information and not personally
identifying information.This would be a big problem: Principle 3 e.g.
requires affirmative express consent for material changes to an online
company's privacy policy. Google has a lot of unauthenticated users. How
should they be asked for their consent?

Principle 4 would either require the affirmative consent, or
simply prohibit, collection of sensitive personal data for behavioral
advertising. Google criticises that "sensitive data" is not defined: ”As
a result, Principle 4 would not allow Google to collect a search query for
“cancer treatment” or “alcoholics anonymous” from unauthenticated users
because we do not have any relationship with an unauthenticated user and we
have no way to obtain that user’s consent – affirmative and express or
otherwise – prior to collecting the search query."

8/08 - Fraudulent Ad Charges - Almeida v. Google

Google offers advertisers two types of ads. The first is a search ad. When
an user uses Google to search for a specific term, Google will display the
ads of advertisers who have bid for those particular keywords. The second
type of ad is contextual based ads. These ads are shown on third party
web sites that have content that matches the keywords bid on by the
advertiser. When signing up, the advertiser has to select the maximum daily
budget and the maximum CPC bid. The advertiser has two choices "Default CPC
bid" and the "CPC content bid". Next to the "CPC content bid" input is the
word "optional". According to a lawsuit brought by Almeida advertisers who
left the optional content bid section of the form blank believed they were
opting out of content advertisement. This expectation was supported by the
fact that users were not given the option of opting out of content bids
during the advertising campaign creation process. So Almeida claims that
Google fraudulently concealed the fact that advertisers would be charged for
the third-party content ads even if they did not complete the portion of the
sign-up form. He alleges that Google's actions constitute an unfair or
deceptive practice within the meaning of California Business and Professions
Code sections 172000 et seq.

The advertisement of products
and techniques to aid in the selection of an unborn child's sex is an
offense under India's "The Pre-conception and Pre-natal Diagnostic
Techniques (Prohibition of Sex Selection) Act". But Google India, Yahoo
India and Microsoft still serve ads that claim to help in the selection of a
child's sex. Following a complaint, India's Supreme Court asked the search
engines to respond to the charges.

Information Commissioner: Street View no violation of privacy laws in
Great Britain?

Google
is expected to launch its controversial Street View feature in Great
Britain later this year. After several complaints from citizens and due
to opposition from privacy advocates, the Information Commissioner's
Office took a closer look at the service and finally gave it his
blessing: "We are satisfied that Google is putting in
place adequate safeguards to avoid any risk to the privacy or safety of
individuals, including the blurring of vehicle registration marks and
the faces of anyone included in Street View images. Although it is
possible that in certain limited circumstances an image may allow
identification of an individual, it is clear that Google are keen to
capture images of streets and not individuals."

Individuals can also complain about identifiable pictures and have them
removed.

Google
Cars have been spotted in several European countries in the last few
months including Spain, Germany, France, Italy and Great Britain.

A
class-action lawsuit filed in May 2006 against
Yahoo! Inc. accused the company of
engaging in "syndication fraud" against advertisers who pay Yahoo to display
their ads on search results and on the Web sites of partner pages. The suit
claims that Yahoo also displayed the ads via spyware and adware products and
on so-called "typosquatter" web sites that capitalize on misspellings of
popular trademarks or company names.

Now,
Google has also been hit with a lawsuit for the alleged sale of "low quality"
ads on parked domains and error pages. The complaint alleges that
Google is guilty of "unjust enrichment" by promising high-quality ad
placements and then serving a substantial portion of ads on low-quality
sites. Plaintiff Levitte claims that 16,3 % of all the clicks in his
campaign came from such sites, but not a single one of those clicks led to a
conversion. The suit seeks class-action status for everyone in the US with
an AdWords account over the last four years.

One
week later, online retailer RK West filed a similiar lawsuit against Google.
The complaint alleges that the company purchased ads without realizing they
would appear on parked domains.

Back in April 2006 the Belgian newspaper group
Copiepresse filed a lawsuit against Google for re-printing parts of their
articles and headlines on Google News and caching their web pages. Google
lost in 2007, but appealed the decision. For over a year, Google and
Copiepresse went into negotiations and tried to find a solution, but it now
seems those talks have broken down. Copiepresse wants Google to pay 4
million Euro immediately, and maybe more later. Professor Alain Berenboom of
the Free University of Brussels estimates that the losses attributable to
Google's activities were between € 32.8 million and € 49.2 million for a
single year! I very much doubt that the newspapers really suffered such a
loss. Quite on the contrary. Without Google, they probably would have had
less visitors and less income from ads. To win the case, Copiepresse has to
show that the headlines and extracts are copyright procted and with regard
to the caching issue, that Google's behavior amounts to copyright
infringement (which is very likely in European countries, because of the
lack of a "fair use" defence).

The court case will resume on September 18 to
decide if the infringements are valid and whether the damages payment is
reasonable.

Tom Lambotte is
suing Citysearch.com, because the advertising company allegedly charged him
improperly for "fraudulent clicks". In his view, Cityseach failed to take
any significant measures to track or prevent click fraud and fails to
adequately warn its existing and potential customers about the existence and
prevalance of click fraud. The incident described in the complaint seems to
be of minor importance. Between December 11, 2007 and December 25, 2007
Lambotte received a total of nine clicks on his ads, between December 26,
2007 and the end of December his ad received between 12 to 16 porported
clicks per day. If this sudden increase of clicks is the result of click
fraud, remains to be seen. Even if this is the case, the damage the
plaintiff might have suffered, might not be higher than 50 US-Dollars...

Jenna Goddard
claims she was injured when she provided her cell phone number to an
allegedly fraudulent mobile subscription service website and was charged for
unwanted mobile content services in form of premium text messages. But
instead of suing the subscription service, she went after Google and sued

the company. Why? Goddard says that she performed a Google search for "ringtone"
and an ad pointed her to the scammy ringtone provider.

d
claims that Google is aware that mobile subscription services frequently do not
disclose these terms, but driven by financial motivations does not live up to
its contractual obligations not to run ads for these companies. "Fortunately
for deceptive mobile subscription services, Google has systematically declined
to live up to its contractual obligations, irrespective of its public
pronouncements to do so, opting instead to line its own pockets through an 'anything
goes' approach to the advertising and sale of mobile content," reads the
complaint.

The
District Court of Hamburg ruled against Google's German news service when it
found that thumbnail images, that were displayed beside excerpts from
various news stories, were protected under German copyright law and could
not be reproduced without permission.

The
District Court of Erfurt argued that webmasters must brace themselves for
other users to link to their works. The court stressed the fact that the
thumbnails cannot be enhanced into high quality images and that the
depiction of thumbnails is beneficial to the copyright holder, because
visual search engines help users to locate them on the internet. Page owners
had one easy way to prevent their pictures from appearing as thumbnails in
search engine results, the court wrote. They can restrict access to the
works on their site, e.g. by the use of a robots.txt file.

The
plaintiff appealed the decision and the Thuringian Higher Regional Court(decision of February 27, 2008, Case No. 2 U 319/07
- full text in German)
did not follow the reasoning of the District Court.

In
accordance with prior cases the court found that the creation and display of
thumbnail images is not allowed under the exemptions granted by the German
Copyright Act. Google also failed to convince the court that the "implied
consent" defense applies. In the eyes of the judges, the upload of a work on
a web site is not enough to find that the copyright owner agrees to all
search engine uses. So thumbnails used by picture search engines violate the
German Copyright Act (I don't agree with this result, please see my article
Green light for search engines to use thumbnail images?).

But
then the court came up with a solution to dismiss the lawsuit. The plaintiff
was engaged in search engine optimization. Under these circumstances, the
court found that the plaintiff had attracted crawlers and was estopped from
raising claims against search engines!

I don't think
that it is a good idea to assume that the plaintiff abused her legal rights:

The plaintiff had used metatags (the decision only speaks of the keyword
metatag - that is useless, if you want to optimize your pages for
Google, but the plaintiff might have also used other metatags). Metatags
don't "attract" crawlers. They are a way of telling search engines which
keywords are relevant for a web site, but they don't influence how often
a web page is visited. Metatags are used to increase the visibility of a
web site within the (web) search results.

The court did not offer a solution what the plaintiff should have done,
if she wanted her web site to appear in the web search results, but not
in the picture search results. If she had optimized the pictures (which
is very difficult to prove), than the reasoning of the court would have
been correct, but only then.

In my view,
it would have been better to consider the search engine optimization (SEO)
under the aspect of "implied consent". The use of the metatags shows
that the copyright owner wanted his works to be found. So it would be
consequent to assume, he impliedly consents to the necessary copyright
uses by search engines.

Ads for non-religious sites with views on abortion? No problem! Adverts for
pornographic sites? Sure! But abortion and religion related content? No way! So
Google refused to run a pro-life ad for The Christian Institute's website,
christian.org.uk, ("UK abortion law - news and views on abortion from the
Christian Institute"), because "abortion and religion-related content" is "inappropriate
content" according to Google's policy.

Lawyers for the Institute say this is unlawful discrimination under the Equality
Act 2006. They demand that Google change its policy or face legal action.

The Central
Council of Jews in Germany filed a temporary injunction March 20, 2008,
against Google in Hamburg District Court. The Jewish group demands that
Google pull hate videos from its YouTube subsidiary. Among the offending
videos was one in which a photo of the late president of the Central Council,
Paul Spiegel, was burned against a background of swastika

,
Stephan Kramer, the general secretary of the Central Council of Jews
explained the move: "The radical right-wing scene is using YouTube,
massively, as a platform. We are accusing Google, with its YouTube video
platform subsidiary of being an accomplice to inciting racial hatred and
discrimination."

4/08 - First Google street view
lawsuit in the USA: Boring v. Google

Google allegedly took pictures
from what was labeled as “private property” for its Street View Feature. So,
Aaron and Christine Boring filed suit in Allegheny County court on April 2,
2008. They are demanding $25,000 to make up for the "mental suffering" and the
diminished value of their home. Google claims that this lawsuit is pointless
since anyone can ask them to have pictures removed without legal action. You can
watch some of the pictures of the proper

on's
privacy panel, the Article 29 Data Protection Working Party, demands that search
engines follow EU privacy regulations, even when the services are headquartered
outside the European Union. They should delete personal data held about their
users within six months.

Key findings of the report:

The Data Protection
Directive (95/46/EC) generally applies to the processing of personal data by
search engines, even when their headquarters are outside of the EEA.

Search engines may only
process personal data for legitimate purposes and the amount of data has to
be relevant and not excessive in respect of the various purposes to be
achieved.

In view of the initial
explanations given by search engine providers on the possible purposes for
collecting personal data (e.g. Service improvements, system security,
fraud prevention, personalised advertising), the Working Party does not
see a basis for a retention period beyond 6 months.... In case search engine
providers retain personal data longer than 6 months, they will have to
demonstrate comprehensively that it is strictly necessary for the service....
If there is no legitimate ground for processing, or for use beyond the
well-specified legitimate purposes, search engine providers must delete
personal data. Instead of deletion, search engines may also anonymise data,
but such anonymisation must be completely irreversible for the Data
Protection Directive to no longer apply.

The Working Party finds
that the correlation of personal data across services and platforms for
authenticated users can only be legitimately done based on consent, after
the users have been adequately informed.

Users of search engine
services have the right to access, inspect and correct if necessary,
according to Article 12 of the Data Protection Directive (95/46/EC), all
their personal data, including their profiles and search history.

Cross-correlation of data
originating from different services belonging to the search engine provider
may only be performed if consent has been granted by the user for that
specific service.

3/08 - EU Commission Clears Google's DoubleClick Bid

On March 11, 2008, European regulators
cleared Google's proposed $3.1 billion acquisition of DoubleClick. The
EU Commission’s in-depth investigation, opened in November 2007, "concluded
that the transaction would be unlikely to have harmful effects on
consumers, either in ad serving or in intermediation in online
advertising markets. The Commission has therefore concluded that the
transaction would not significantly impede effective competition within
the European Economic Area (EEA) or a significant part of it." The
Commission did not believe that themerged entity would have the
ability to engage in strategies aimed at marginalising Google's
competitors, mainly because of the presence of credible ad serving
alternatives to which customers can switch, in particular companies such
as Microsoft, Yahoo! and AOL.

The Australian Competition and
Consumer Commission (ACCC)accuses Google of inadequately
distinguishing between its sponsored links and the normal "organic" search
results (see
Update 51). The case will be
heard in the Federal Court June 23, 2008.

Same problem in Spain: The
Federation of Consumers in Action (FACUA) filed complaints
with several government ministries (the National Consumer Institute, the Spanish
Office of Patents and Trademarks, the Ministry of Health and Consumer Affairs
ministry of the region of Madrid) against Yahoo and Google claiming that the ads
aren't adequately distinguishable from the search results.
The group also criticizes the use of trademark
protected terms as keywords. According to the group, one third of
telecommunications companies, two thirds of travel agencies and 20 percent of
the banking entities studied used the names of their competitors to advertise on
Google.

November 19, 2007:
Australia sets date for Google keyword case,
ZDNet:"The Australian Federal Court has set a
hearing date for the Australian Competition and Consumer Commission's
allegations against Google of misleading and deceptive conduct."

12/07 - Austrian study: Google is creating dangerous monopolies and has
to be stopped!

According to an Austrian
university study (187-pages
PDF) Google is creating unacceptable monopolies
that will allow it to control information flows and invade privacy.

Two of the conclusions of the
study are:

"Google can use its
almost universal knowledge of what is happening in the world to play the
stock market without risk: in certain areas Google KNOWS what will happen,
and does not have to rely on educated guesses as other players in stock
market have to. This is endangering trading on markets: by game theory,
trading is based on the fact that nobody has complete information (i.e. will
win sometimes, but also loose sometimes). Any entity that never looses
rattles the basic foundations of stock exchanges!"

"Google’s open aim is to
“know everything there is to know on Earth”. It cannot be tolerated that a
private company has that much power: it can extort, control, and dominate
the world at will."

According
to Theage.com, a Google
spokesman said in a statement: "These allegations are premised on
numerous inaccuracies, conspiracy theories and fundamental
misunderstandings about Google's products and services. They're
completely without foundation and, frankly, a little strange.''

11/07 - Google Street View - Privacy Concerns in Canada

On May 25, 2007, Google released Street View, a new feature of Google
Maps which provides 360° panoramic street-level views of various U.S. cities. On
this date, the feature only included five cities, but has since expanded to
fifteen, with plans for more U.S. and Canadian cities in the future. The
application
raises privacy concerns because of its close-up views of city streets and
recognisable shots of people. Images showing people beeing arrested, sunbathing
and urinating in the public, have been found by users (see e.g.
10 bizarre sights in Google Street View).

The new feature probably meets
U.S. privacy standards because the U.S. has a long tradition of treating public
spaces as truly public. But the new feature might not be legal in countries with
stricter privacy laws. Canada's Personal Information Protection and Electronic
Document Act (PIPEDA) e.g. requires private companies to obtain consent of
consumers to collect, use or disclosure their personal information. In order to
comply with Canadian laws, Google is willing to blur identifiable faces and
license plates. But
according to Margaret Ann Wilkinson, a professor of law and information and
media studies at the University of Western Ontario, this might not be enough:
"If an individual can be readily identified by his or her body, clothing or
location, it might still be considered a violation."

The Google cam-cars have already been spotted in London suggesting that
Street View will be extended to Europe.

11/07 - AdWord
advertising on copyright-infringing lyric websites

Lawyers representing the NMPA (National Music Publishers' Association),
the leading trade association representing U.S. music publishers, have met with
Google to discuss the problem of AdWord advertising on copyright-infringing
lyric websites. They want to stop copyright infringers from making money.
According to
US Today, Google said in a statement: "We take copyrights very seriously. In
accordance with our policy, we disable ads on websites in our content network
when we are made aware that they appear next to copyrighted content. Copyright
holders who find their copyrighted material appearing next to Google ads can
find more information about the Digital Millennium Copyright Act (DMCA)
take-down requests on our AdSense website. Hundreds of thousands of website
publishers responsibly abide by our policies and we're committed to preventing
those who don't from using our program."

8/07 - Defamation Lawsuit: Gene Phillips v. Google

Gene Philips, a Dallas businessman found some allegedly false,
misleading and defamatory statements about him on the internet e.g. a Dallas
Business Journal article, which implies that Philips knowingly participated in
organzied crime activities (he was found not guilty of all the charges brought
against him). And guess, who he is suing. Correct answer is Google! He claims
that by providing a link to the articles, Google publishes the false statements...

Search engine should be protected by 47 USC 230 against such claims and I can
see no way, how the plaintiff can get around this defense.

In 2005, Google has changed the name of its German email
service to "Google Mail", because Daniel Giersch, who allegedly owns the rights
to "G-Mail" in Germany and started using the mark for his own
physical mail service in 2000,
won at both the preliminary and final stages of the litigation
before the district court in Hamburg. But Google did appeal the decision and now
has lost again (Az
5 U 87/06). This could be the end of this long-running case in Germany over
the "Gmail" trade mark, because the Hanseatic Higher Regional Court in Hamburg
denied Google leave to appeal to the Germany's Federal Court. Google's last
chance is to file for non-admission of the ruling at the Federal Court to
prevent the ruling from taking effect.

According to
Information Week Google said in an e-mailed statement: "Google owns the 'Gmail'
trademark in over 60 countries worldwide and we have used it ever since we
launched the service in 2004. While we regret the German court's decision, it
will in no way affect our ability to continue to provide Web e-mail to our users
in Germany. Our German users will continue to use 'Google Mail' and enjoy the
same experience as users of Gmail worldwide."

In addition to the lawsuit in
Germany, Google is also taking action against Giersch in Spain,
Portugal and Switzerland.

July 5, 2007: Williams,
Chris,
German courts demand no more Gmail squabbling, The Register:
" German courts have banned Google from further attempts to wrestle the
rights to the "Gmail" trademark away from a businessman who registered the
name several years before it launched a webmail service"

8/07 - Google may have to reveal AdWord secrets

In 2002, Sport Court sued Rhino for trademark infringement,
and a year later, Rhino agreed to an injunction restricting it from using the
"Sport Court" trademark "on or in connection with the Internet. Then, in early
May 2007, Sport Court accused Rhino of violating the injunction, claiming that
the company had purchased the "sport court" keyword phrase on Google AdWords.

But Rhino had merely purchased the "broad match" terms "court" and "basketball
court," not the specific term "sport court." So the court rejected plaintiff's
claim, but he has now issued a subpoena to Google, requesting information on
"all purchases of 'sport court' as a keyword," "associated cost per click
calculations," "estimated ad positions for the keyword," and "search volume
trends for the keyword." That includes information about Sport Court's AdWords
account as well as the accounts of other businesses.

Google has sent out a warning letter to an undisclosed number of its
advertisers to inform them of the civil subpoena it received, and given them
until July 19th to respond. If those advertisers do not formally object, Google
may give over their ad data to legal authorities. The letter was
posted on the Technology and Marketing Law Blog.

The Football Association Premier League Ltd. and publisher Bourne
Co. sued YouTube in U.S. District Court for the Southern District of New York,
saying the online video pioneer was engaging in widespread copyright
infringement to bring traffic to the site. The lawsuit asks for unspecified
damages and YouTube's profits from the material in question. It also sought
class action status.

This lawsuit comes less than two months after
Viacom sued YouTube and Google for copyright infringement of their television
programming, and six months after Google purchased the YouTube video sharing web
site.

A mandolin
player who recorded with The Grateful Dead also filed a copyright infringement
lawsuit May 10 in federal court in San Francisco. The lawsuit says Google and YouTube "deliberately
refuse to take meaningful steps to deter the rampant infringing activity readily
apparent on YouTube."

EU's
Article 29 Working Party, which is charged with providing expert opinion
on issues of data protection, wrote to Google and
said that despite recent changes in the search engine's data-retention policy,
Google still does not meet EU standards for data retention.

In response to the letter Google
decided to make the data it stores about its users anonymous in the server logs
after 18 months (previously Google had said it would make the data anonymous
after 18 to 24 months). The Article 29 Working Party said that it still needs to
analyze Google's response to see whether it's an acceptable solution, and has
asked Google several new questions about technologies that they use to collect
search information.

Also trouble for Google in the USA: The Federal
Trade Commission (FTC) has opened an antitrust investigation into Google Inc.'s
proposed 3.1 billion dollar purchase of ad-management technology company
DoubleClick Inc. The Electronic Privacy Information Center and other privacy
groups had previously asked the FTC to investigate the privacy implications of
the deal. The groups fear that the combination of Google's search history and
DoubleClick's tracking of web sites visited would "give one company access to
more information about the Internet activities of consumers than any other
company in the world."

May 28, 2007: Lohr, Steve,
Google deal said to bring U.S. scrutiny, CNet:
"The Federal Trade Commission has opened a preliminary antitrust
investigation into Google's planned $3.1 billion purchase of the online
advertising company DoubleClick, an industry executive briefed on the
agency's plans said Monday. "

5/07 - Use of
Thumbnail Images not infringing in Germany

According to the District Court
of Erfurt (text
in German), Google's use of thumbnails in its image search engine does not
vialate German copyright law. People who create web sites have a standing
interest in getting other people to learn about and visit their web sites. The
depiction of thumbnails is thus, in this case, beneficial for the copyright
holder, the court wrote. Webmasters who want to restrict access to their content
could make use of the robots.txt file.

The decision stands in direct
opposition to a 2003 Hamburg court decision (text
in German), which said that Google's image search engine violates copyright
law because Google has no permission to display the images.

I personally find the Erfurt
court decision more compelling. It also reflects my view, expressed in an
article, published in the ZUM 2007, pages 119 - 128.

5/07 - Google sued for search result

A New Jersey building contractor
is suing consumer-complaint site The Rip-Off Report for hosting a customer's
negative feedback about him, and he's also going after Google for indexing the
criticism and returning it in search results. Chances of success: Probably 0%,
because Google is covered by 47 USC 230 for this content!

In the last update, I have
mentioned a case against Yahoo China brought by the IFPI because of links to web
sites with unlicensed MP3 downloads. In April, a Beijing court ordered
Yahoo! China to pay about 200,000 yuan (26,000 dollars) in damages for assisting
downloads of unlicensed music in other websites and delete 229 links to free
songs.

Baidu.com, operator of China's
largest search engine, had more luck last year: In a similar case, but under
other regulations, the company wasn't found liable for copyright
violations. "The Beijing Court has confirmed that Yahoo China has clear
responsibility for removing all links to the infringing tracks on its service,"
Kennedy, the IFPI's chairman and CEO said in a statement. "Because this is a
judgment made under new regulations in China, today's judgment supersedes the
previous decision on Baidu and confirms the responsibility of all similar music
search providers in China." Yahoo! China plans to file an appeal.

“Why do the search engine store the IP addresses
[of searchers] for so long and what are they
using them for?”
The Norwegian Data Inspectorate, an independent administrative
body under the Norwegian Ministry of Labour and
Government Administration, wants answers and is
investigating the data storage policies of a
number of search engines, including Google and
Norwegian search engines Sesam and Kvasir. The
focus is on whether the storage of large
quantities of deta related to internet searches
is a violation of Norwegian data protection
laws.

According to the latest news reports a European
Union advisory body has written a letter to
Google warning the search giant that its
pratices fall short of EU data protection
standards. Google confirmed that it received an
earlier letter from the Norwegian Data
Protection Group. Details were not yet released.

In the USA, three consumer advocate
organizations have filed a joint complaint with
the Federal Trade Commission (FTC) requesting
that the
Google/DoubleClick merger
be stopped.The complaint asserts that "neither
Google or DoubleClick have taken adequate steps
to safeguard the personal data that is
collected." The complaint says that Google's
acquisition of DoubleClick "will give one
company access to more information about the
Internet activities of consumers than any other
company in the world. There is simply no
consumer privacy issue more pressing for the
Commission to consider than Google's plan to
combine the search histories and Web site visit
records of Internet users."

c. Google wants to alter data retention
policy

According to a March 14 announcement, Google
will over the next few months begin to anonymize
search data it retains. The plan is to strip
parts of IP data from records in order to
protect the user’s privacy and reduce the
likelihood that the IP address or cookie
information can be tied to a particular user.

Google Inc has settled a
copyright dispute with Agence France-Presse permitting the search engine to post
parts of the agency's news and photos onto its Google News site. In its lawsuit,
which was filed both in the U.S. and France, AFP had sought damages of at least
17.5 million dollar as well as a court-imposed order barring Google from
including its material in Google News.
In a joint statement, the two companies said the settlement allows Google to
post AFP content on Google News and other services. Terms of the pact were not
disclosed. The deal will let Google use AFP material "in innovative, new ways,"
AFP said.
Google settled a separate dispute with The Associated Press in August 2006.

According to the U.S. District
Court for the Eastern District of Pennsylvania, a forum selection clause in an
online contract's terms is acceptable, and will not absolve a party who clicks
"I Agree" without taking the time to view the whole agreement as long as it is
readily accessible and clear. So the court did uphold Google's mandatory venue
provision in its AdWords contract specifying that all lawsuits shall be brought
in California. So the click fraud case between Feldman and Google was
transferred from Pennsylvania to California. According to Prof. Goldman, this "should
inhibit AdWords advertisers from suing Google all over the country. Therefore,
all lawsuits will have to be in Google's home court..."

has removed a large number of search
terms from the bidding process to force small businesses to compete for
higher-priced keywords. Small advertisers are
being forced out of the AdWords market, which makes advertising more profitable
for Google's largest advertisers (the well-known established advertisers with
the higher clickthrough rates like eBay).

He charged Google with monopolization or
attempted monopolization.

U.S.
District Court Judge Jeremy Fogel dismissed the antitrust lawsuit against
Google. In his view there is not a monopoly
despite Google's formidable presence in the online ad market: "Plaintiff
defines the relevant market in the FAC as “‘keyword-targeted Internet
advertising’ in which advertisers pay to have their advertisements displayed
(alone or among an ordered group of ads identified as such) near the search
results obtained from Internet search engine (such as the search engines of
Google and Yahoo) using the keyword(s) selected by the advertiser... The Court
finds no basis for distinguishing the Search Ad Market from the larger market
for Internet advertising. Search-based advertising is reasonably interchangeable
with other forms of Internet advertising. A website may choose to advertise via
search-based advertising or by posting advertisements independently of any
search. The Search Ad Market thus is too narrow to form a relevant market for
antitrust purposes."

According to
JupiterResearch's estimate Google's share of the U.S.
online advertising market in 2006 was 17% -- one percentage point ahead of
Yahoo.

At the direction of Findwhat,
Advertising allegedly hired people to conduct Internet searches through
Findwhat’s search engine using certain keywords that would trigger search
results and advertising listings. Advertising instructed these people to click
on certain advertising links from the search results, including Plaintiff’s
links, thereby causing Plaintiff Payday to incur PPC charges for each such
click. Also at the direction of Findwhat, Advertising used computer programs or
“bots” to click continuously and systematically on Payday’s advertising links to
increase the defendants’ revenues. These “bots” were able to “spoof” different
reference points on the Internet to make it appear that the clicks came from
different sources. These methods, which Payday calls “click fraud”, led Payday
to be charged for clicks that were not the result of genuine interest from
consumers or of genuine market activity.

Playday claimed six causes
of action, e.g. breach of contract, unjust enrichment, negligence and civil
conspiracy. Only the breach of contract claim survived the motion to dismiss.
"...Payday argues that an interpretation of the contract that would allow the
defendants deliberately to generate clicks on Payday’s site from users or “bots”
who plainly have no intention of making purchases should be disallowed because
it would violate the implied covenant of good faith and fair dealing."

Yahoo China, the No. 2 Chinese search
engine after industry leader Baidu.com, links to web sites with unlicensed MP3
downloads of hundreds of songs. Warner Music Group, Sony BMG and nine
other music firms have sued Yahoo China for alleged copyright violations.
Beijing's intermediate court accepted the suit, which was filed in January 2007,
seeking 5.5 million yuan in compensation for linking its website to unlicensed
music.
The lawsuit comes four months after Baidu.com, operator of China's largest
search engine, won a case brought by music firms claiming Baidu allowed links to
illegal song downloads on its website. According to the court, Baidu did not
violate copyrights because it helped users find music on non-affiliated websites
through links and did not offer direct downloads of music.

March 6, 2007:
Yahoo China sued for music downloads, Shanghai Daily
"Eleven music companies, including Universal Music Group and Warner Music
Group Corp, jointly filed a suit against Beijing-based Alibaba, operator of
the Yahoo China Website, which provides online music downloading services."

4/07 - Viacom sues Google over YouTube

Viacom has filed a $1 billion
copyright infringement suit against Google. Viacom says Google's YouTube sevice
is hosting 160,000 infringing works, which have been viewed 1.5 billion times.
It alleges that YouTube "is a significant, for-profit organization that has
built a lucrative business out of exploiting the devotion of fans to others'
creative works in order to enrich itself and its corporate parent Google. Their
business model, which is based on building traffic and selling advertising off
of unlicensed content, is clearly illegal and is in obvious conflict with
copyright laws."

Google managing counsel Michael
Kwun wrote a peppered letter with the title "An
End Run on Copyright Law" to the Washington Post in regards to the Viacom/
YouTube court case: "...Viacom is attempting to rewrite established copyright
law through a baseless lawsuit. In February, after negotiations broke down,
Viacom requested that YouTube take down more than 100,000 videos. We did so
immediately, working through a weekend. Viacom later withdrew some of those
requests, apparently realizing that those videos were not infringing, after all.
Though Viacom seems unable to determine what constitutes infringing content, its
lawyers believe that we should have the responsibility and ability to do it for
them. Fortunately, the law is clear, and on our side."

March 14, 2007: Declan,
McCullagh,
YouTube's fate rests on decade-old copyright law, ZDNet:
"Whether YouTube suffers the same fate as Napster may depend on the wording
of a nearly antique law written long before video-sharing Web sites were
envisioned."

March 13, 2007:
Analysts: YouTube lawsuit may boost rivals, CNN:
"Viacom's billion-dollar legal gambit against Google could lead to more
media industry lawsuits and give a boost to rival online video services in
the emerging marketplace."

4/07 - Search Engines Can Choose Not To Run Ads in the USA

In Langdon v. Google, Langdon,
who operates web sites claiming to expose corruption by U.S. and Chinese
government officials, sued Google, MSN, and Yahoo because they refused to
publish his ads. Google allegedly rejected them because they attacked people,
MSN ignored his ad request, and Yahoo said it would only take ads from
sites it hosts (for
more information on the lawsuit see Update 41).

On February 20, 2007, U.S.
District Court Judge Joseph Farnan dismissed the suit. "Search engines have a
First Amendment right to reject ads as part of their protected right to speak or
not," Farnan wrote. So the court ruling affirms Google's right to enforce its
long-standing ad policy and gives Google free reign to refuse an ad for any
reason. However, one claim remains: whether Google
breached a contract it had with Langdon in allowing him to sign up for AdWords.

The Korean Fair Trade Commission
(KFTC) has asked Google to rewrite sections of its AdSense contracts which
empower Google to unilaterally cancel any deal. These sections are considered
unfair under Korean law.

Humor University placed Google
AdSense ads on its website, but from October to November 2005 did not get paid.
When it complained to Google it was told its contract had been terminated
because of suspicious activities ("click fraud"). The university then made a
complaint to the KFTC.

A Belgian court upheld its
decision that Google violated the copyright of several Belgian newspapers by
posting extracts of their stories on the Google News Web site without their
permission. The Brussels Court of First Instance ruled that Google could not
call on exemptions, such as claiming "fair use": "Google is reproducing and
publishing works protected by copyright," it said. "Google cannot call on any
exceptions set out by law relating to copyright or similar rights."

The Brussels court has fined
Google 25,000 € for each day it displayed links to the Belgian newspapers,
represented by plaintiff Copiepresse, a group of 18 French- and German-language
publications. The sum is significantly below the original penalty of 1 million
euros a day that the court set last September.

Google intends to appeal the
ruling.

February 14, 2007:
Belgian court confirms ruling against Google News, Heise:
"Google is not allowed to publish in its news section content found in
Belgian publications without the permission of the publishers in question;
without explicit permission items of this kind must be removed."

February 13, 2007: Crampton,
Thomas,
Google Said to Violate Copyright Laws, New York Times:
"A Brussels court ruled Tuesday that Google had violated copyright laws by
publishing links to articles from Belgian newspapers without permission.
Legal experts said the case could have broad implications in Europe for the
news indexes provided by search engines."

February 13, 2007:
Google will
appeal Copiepresse decision, Outlaw.com:
"Google will appeal today's judgment from a Belgian court that it broke the
law when it used newspaper material in Google News. The company will have to
stop publishing links to certain newspaper sites having been found liable
for copyright infringement."

February 13, 2007:
Robertson, Struan,
Why the Belgian
court ruled against Google, Outlaw.com:
"EDITORIAL: Every search engine should obtain permission from a website
before copying its pages or even snippets of text, according to a ruling by
a Belgian court today."

In a written submission to the Australian Senate
Google argued that proposed fair use exemptions in a bill amending Australia's
copyright law does not go far enough in protecting fair use. Google called for a
specific exception that would exempt from infringement all caching, indexing and
archiving where the copyright owner has not used a standardized protocol to
prohibit caching or archiving: "Given the vast size of the Internet, it is
impossible for any search engine to contact personally each owner of a web page
to determine whether the owner desires its webpage to be searched, indexed, or
cached. If such advance permission was required, the Internet would promptly
grind to a halt." Google also proposes an exemption for the digitizing of
library and archive material: "...an exception should be made for the
reproduction and storage of digital copies of entire works when such
reproduction is done for the purposes of permitted research, study, or private
use."

Yahoo China has won an unfair competition lawsuit
in China brought against Beijing Sanjiwuxian Internet Technology, the company
that operates Qihoo.com. According to the lawsuit
Qihoo's antivirus software called 360safe would tell users of Yahoo China's
toolbar to uninstall the application, claiming it was malware. However, the
court found that this was not the case.
Beijing's Second Intermediate Court ordered Qihoo to compensate
Yahoo China for unspecified damages and legal costs
and to make a public announcement saying that Yahoo China's software is not
malicious in nature.

Google's e-mail service is known as "Gmail" in all
European countries, except for Germany (the district court in Hamburg handed
Giersch victories at both the preliminary and final stages of the litigation,
see Update 33)
and the United Kingdom, where it goes by "Google Mail" as a result of trademark
disputes in those countries.

In a January 23, 2007 ruling, the Office for
Harmonisation in the Internal Market (OHIM), the body which is responsible for
European community trademarks, has ruled that Google cannot register "Gmail"
across Europe, as the name is similar to Daniel Giersch's registered trademark,
which translates as "G-mail ... and the Post really takes off." "The high
degree of similarity between the marks leaves little room for small differences
to be observed by the general public," the Office said. Google could appeal
the decision, up to the highest regional court, the European Court of First
Instance.

After the ruling, Giersch announced lawsuits to
defend more recent registrations of the trademark in Switzerland, Norway and
Monaco.

Google has been sued for
overcharging in AdWords by CLRB Hanson Industries LLC and others, in Santa Clara
Superior Court. The
complaint, filed on August 3, 2005, accuses Google of charging
advertisers more than the daily limits that the system lets advertisers choose
(see
Update 32).

Google filed a
motion for
summary judgment Oct 2, 2006. Google says, the terms of the parties’
Agreement expressly state that on any single day, the AdWords system may deliver
up to 20% more ads than an advertiser’s daily budget calls for and that an
advertiser will never be charged more than [his/her/its] average daily budget
over the course of a month. According to Google, its invoices show that
Plaintiffs were not charged more than 120% of the daily budget on any given day
or more than the number of days in a month multiplied by the daily budget.

2/07 - Stoller: Google will go out of business by the end of this
lawsuit...

Google has sued Stoller for false advertising,
unfair competition and RICO violations for claiming that Stoller owns the Google
trademark. According to Wikipedia, Leo D. Stoller is an self-styled
"intellectual property entrepreneur", who controversially claims rights to a
large inventory of "famous" trademarks and engages in the assertive enforcement
of those alleged trademark rights, threatening infringement action against
people and companies who attempt to use similar marks. A federal court labeled
Stoller and his companies as "vexatious litigants" in 2005. Courts have
repeatedly found lawsuits brought by Stoller to be part of pattern of sham
litigation and have repeatedly sanctioned him for his groundless claims of
trademark rights. The complaint is a funny read. It lists out the long, long
history of Mr. Stoller, and details many of the lawsuits he's lost and bogus
trademarks he's claimed to own.

In 2005 Stoller tried to claim the trademark
"Google", sending a letter to the USPTO on letterhead supposedly from an
organization called "Google Brand Licensing and Products," claiming the use of
"Google" in commerce since 1981. Stoller also claimed on his website that you
could license "Google" from him. He then demanded money from Google to make this
go away. He threatened to destroy the Google trademark by having it taken away
as generic. He alleges that the Trademark Trial and Appeal Board cancel Google's
mark because it has become a "generic" name for the goods or services for which
it is registered (15 U.S.C Section 1064(3)). He also alleges that Google has
also perpetrated a fraud on the public by contacting publishers of dictionaries
in order to induce the publishers to change the "lexicon" of the 'google'
meaning so as to avoid the generic label.

Stoller promises that Google's stock "won't be
worth $5 a share" after he's done with them and that he wouldn't be surprised if
"Google goes out of business" by the end of his lawsuit...

A Milan prosecutor is reportedly
investigating two legal representatives of Google for being accessories to
"aggravated defamation" after the Internet search engine posted a video showing
the violent bullying of a disabled teenager. A spokeswoman for Google in Europe
said the internet search engine was sorry for the distress caused and had acted
swiftly when it was informed of the video's content.

Google France was sued by Flach
Film, a French film producer, for copyright infringement. They claim their
video, "The World According to Bush," was published on Google Video France, and
viewed more 50,000 times, before Google removed the video. "We made estimates of
the prejudice, and it goes well beyond 500,000 euros ($648,700). The film has
been downloaded about 50,000 times, and it has certainly been copied
afterwards," Jean-Francois Lepetit, producer of the film, told Reuters in a
telephone interview.

November 23, 2006:
French film producer sues Google France, Reuters:
"The producer of "The World According to Bush" has taken legal action
against Google for distributing the film for free, becoming the latest media
company to seek compensation for lost business on the Internet."

11/06 - Belgium: Copiepresse v. Google
Update

After a three hour hearing, a
Belgian court said it would wait until after the new year to decide whether to
uphold an injunction blocking Google Inc. from reproducing snippets of Belgian
press reports. Google's lawyers insist that the company had not broken copyright
law by showing headlines, a few lines of text and a link to the original story.
Because of an earlier ruling, Google has stripped Belgian newspaper content from
Google News.

Separately, Google reached a
deal with two other groups that had been plaintiffs in the Google News lawsuit
in Belgium. Details were not disclosed.

And in Scandinavia? The
Norwegian association for media companies, Mediebedriftenes Landsforening,
argues that
Google
News Norway cannot make use of photographs without a proper agreement.

According to
Dagens Næringsliv
the association has sent a letter to Google Norway arguing that this use of
photographs is in violation with Norwegian copyright law.

November 22, 2006:
Google News finds more trouble in Europe, InfoWorld:
"Google is facing mounting protests from newspaper publishers in Europe, the
impact of which could ultimately affect the amount of content available to
end users through search engines."

10/06 - Belgium: Publisher v. Search Engine

Google has been ordered
by a Belgian court to
remove all articles,
photographs and graphics
from French-speaking
newspapers. Copiepresse
issued the complaint and
won the court ruling on
September 5th. Not only
does this require Google
to remove content from
Google News, the court
order also requires
removing the content
from the Google cache.
ChillingEffects.org has
a link to the
full court order.

Google asked the court
to reconsider its
decision and requested
that the requirement to
post the ruling on its
home pages be suspended.
The court on Friday 22nd
September agreed to
reconsider its ruling in
November this year.

Also
see a
press release
by the
World Association of
Newspapers (WAN)
about a new
software-based protocol
called ACAP (Automated
Content Access Protocol)
which is used to tell
search engine spiders,
and other services, what
can be done with the
content they crawl. The
project is due to start
later this year and last
for 12 months.

September 25, 2006:
About the Google News case in Belgium, Official
Google Blog:
"You may have read recently about Google being taken to court in Belgium.
Whilst we aren't allowed to comment on the judgment itself, we thought you
may want to know the facts of the case -- what actually happened, and when
-- and the issues it raises."

It took Theresa B. Bradley and
her staff 100 hours for "placing and reviewing HTML code for Google AdSense" on
her site, BravaCorp.com. Although Google's AdSense terms &
policies clearly
states "Please note that clicking on your own ads for any reason is prohibited,
to avoid potential inflation of advertiser costs", Bradley clicked her own ads
"to verify that the advertisers were not selling competing products" (Google
provides a
Preview Tool that helps customers judge the quality of AdSense
advertisements on their site). It didn't take long and Google suspended her
account.

Bradley now decided to sue
Google for $250,000 in San Francisco federal district court because it took her
so long to place and review AdSense advertisements on her web site. So let us do
a little math: 250.000 dollars for 100 hours, that makes 2.500 dollars an hour.
Not bad! But the nonsense continues: BravaCorp.com is not a very big web site:
Only about 50 pages. So it took 2 hours to include the AdSense code into one
page!

The suit also accuses Google of
fraud and misrepresentation, including misrepresentation in commercial
advertising, and of "willfull, wanton, fraudulent and malicious" conduct
regarding its AdSense product.

Catawba County Schools in North
Carolina filed an injunction against Google, saying the search engine improperly
indexed private information about schoolchildren, including names, social
security numbers and test scores of 619 current and former students. The
information was stored in the school system's DocuShare server, which required a
user name and password to access. According to Google their crawlers
cannot index information secured by password. So where is the security leak?
The temporary injunction calls for Google to remove any information pertaining
to the Catawba County Schools Board of Education from its server and index and
accuses the corporation of trespass.

Mark Roberts claimed breach of
contract, in part because of Google's add URL feature and help pages supposedly
formed a promise that his pages should be top ranked. After Google threatened to
file an anti-SLAPP motion against him, a means of effectively getting the court
to agree that the case is without merit and recovering costs, he
voluntarily dismissed the complaint without prejudice.

Google has
been sued for allegedly refusing an anti-China ad. According to the
complaint, activist Christopher Langdon submitted a three-line ad through
Google's AdWords program on Thursday, March 29. The ad read simply: "Communist China Has Murdered Millions - Boycott China"

Langdon also attempted to
advertise his website www.ncjusticefraud.com with Google. That site accuses N.C.
Attorney General Roy Cooper of lying to the U.S. Supreme Court and perpetrating
other fraud on the Court. The proposed ad read: "Roy Coopers Fraud--Cooper's
fraud on the Supreme Court--Corruption within the N.C.D.O.J.
www.ncjusticefraud.com."

That ad was rejected,
purportedly because: "At this time, Google policy does not permit ad text that
advocates against an individual, group or organization. In addition, this
policy does not permit the advertisement of websites that advocate against a
group protected by law."

Langdon claims that Google's
reticence violates his constitutional right to free speech. In his opinion
private property owners can be bound by the First Amendment if the property
becomes a public space.

"There is a great deal of
inconsistency and hypocrisy in the application of Google's Content Policy.
Google's Content policy requires that the ads, and the associated website,
conform to the Content Policy. However, Google routinely allows large
budget advertisers to evade Google's Content Policy. For example, if you
Google Search "Impeach Bush," or, "Anti-Hillary Clinton," there are a large
number of ads (sponsored links) next to the search results. One of those sites
sells material that calls Senators Clinton, Kenendy and Kerry, Communists. They
also sell material accusing President Bush, and members of his
administration, of murder, treason, election fraud, lying and of being Nazis.
It seems to me that if those sites can make those statements, then I should be
allowed to accuse Roy Cooper of lying to the U.S. Supreme Court."

An online advertiser filed a
class action
lawsuit May 1 in the U.S. District Court for the District of New Jersey
against Yahoo, alleging that Yahoo's practice of causing online ads to be
displayed via spyware and on typosquatted web sites violates its contract with
advertisers (Crafts by Veronica v. Yahoo! Inc., D.N.J., No 12:06-cv-01985,
complaint filed May 1, 2006). If the class action is certified, any Yahoo!
customer in the United States would be a member of the class.

Nassau
County Legislator Jeffrey Toback is suing Google because the search
engine is allegedly profiting from child pornography and taking in
billions of pounds by allowing child pornography and "other obscene
content" adverts on their sites through sponsored links. The lawsuit
says that Google is "the largest and most efficient facilitator and
distributor of child pornography in the world." Google
"continues to put its economic gains ahead of the interests and
well-being of America's children," the lawsuit, filed in Nassau
State Supreme Court alleges.

According to The Sydney Morning Herald Google spokesman Steve Langdon
responded: "Child pornography is illegal, and Google prohibits it in our
products. When we find or are made aware of any child pornography, we remove it
from our products, including our search engine. We also report it to the
appropriate law enforcement officials and fully co-operate with the law
enforcement community to combat child pornography".
As for the lawsuit's chances of success, they seem to be very small, see
Goldman, Eric,
Google Sued for Child Porn--Toback v. Google, Technology & Marketing Law
Blog

May 10, 2006:
Google accused of profiting from child porn, The Register:
"Google has been sued by Nassau County Legislator Jeffrey Toback who claims
the search giant is promoting and profiting from child pornography, going so
far as to suggest that child porn is part of its business model, according
to reports."

In June 2006 Jeffrey Toback has dropped a federal lawsuit that had claimed
the search engine company Google Inc. profits from child pornography. He
said he did this because "Google has offered to sit down and discuss the
issues. They didn't want to do that while litigation was pending, so we're
taking them up on their offer."

June 23, 2006:
N.Y. Lawmaker Drops Google Porn Lawsuit, The Age:
"A Long Island politician has dropped a federal lawsuit that had claimed the
search engine company Google Inc. profits from child pornography."

On the matter of the proposed settlement that Google is trying to
make in California regarding click fraud, the judge is expected to consider
the class-action settlement in late July. The former Google advertiser
Joseph Kinney sued in Arkansas state court to block the settlement, arguing
the amount grossly understates how much the online search engine leader has
benefited from "click fraud."

The agreement is available
here
(PDF), and the order giving preliminary agreement is available
here.

A Belgian network-monitoring
outfit called ServersCheck has sued Google claiming its tool bar
points the way to pirated software. The suit claims that Google's
Suggest feature shows would-be purchasers of ServersCheck software
where to get the latest cracks and pirated versions. When you begin
to type your search atGoogle Suggeston "ServersCheck" it brings up results for
e.g. "ServersCheck Crack" and "ServersCheck Serial."

The premiership footballer Ashley Cole is involved in legal action
against the News of the World and The Sun over stories alleging
bisexuality among Premiership players. And Google is doing its best
to attract more people to the story: Typing "ashley cole" into the
search engine generates "See results for: ashley cole gay"!
Cole’s solicitors want to know when and what prompted the process.
Cole said: "I am keen to find out whether the decision to
automatically include the term ‘gay’ to the keyword ‘Ashley Cole’
was an editorial decision or one made by a computer based on the
volume of searches for ‘Ashley Cole’ linked to the word ‘gay’."

Filed under the Digital Millennium Copyright Act,
a subpoena issued Feb. 21 demands that Google and video-sharing site
YouTube reveal the name of the person who posted a portion of one of
American Airline's training videos on their Web sites.

Last year, a
consortium of advertisers
(led by Lane's Collectibles)has filed a class action suit in
Arkansas against Yahoo,
Google and 9 other search engines, accusing the search companies of
knowingly charging for fraudulent clicks.

In March, Google agreed to pay up to $90 million in legal
fees and compensation in the form of credits for further advertising to
companies who believe they have been affected by click fraud, to settle its part
of the lawsuit. If approved by the judge in the case, the agreement
will cover all advertisers who claim to have been charged but not
compensated for invalid clicks as far back as 2002 when the pay per click
programme was introduced.

A spokeswoman for Yahoo said her company was prepared to
continue to defend itself against the legal action.

March 9, 2006:
Google Settles Suit Over Ad Referrals, New York Times:
"Google has agreed to pay $90 million to settle a lawsuit contending it
overcharged thousands of advertisers who paid for bogus sales referrals
generated through a ruse known as click fraud."

March 9, 2006,
Putting a price on click fraud, CNet:
"Google is prepared to pay $90 million to settle a lawsuit over click fraud,
the company said Wednesday."

Google accused BMW of manipulating search results by using so called "doorway
pages". Doorway pages can be used to trick search engines into sending users to
Web sites that are not directly related to the search terms they are searching
for. Google's quality guidelines forbid the use of doorway pages ("Don't deceive
your users or present different content to search engines than you display to
users."). Although BMW said that the pages had been created to direct people who
were interested in topics related to BMW -- such as used cars -- to the right
pages, the doorway pages were removed. Shortly after the BMW website could be
found again at Google.

The case
once again rises the question if search engines are completely free in
deciding which website they include in their index. A new article from me,
that will presumably be published in the April issue of the MMR, will adress
this topic in more detail. A short statement to the BMW / Google case has
been published by Telepolis:

February 8, 2006: Mills, Elinor,
BMW.de. Ricoh.de back in Google index, CNet:
"The German language Web sites of carmaker BMW and technology product vendor
Ricoh are back in the search results on Google's search site after they
stopped using a technique designed to artificially boost their search engine
rating, according to a Google engineer."

February 7,
Google Imposes a Ban on BMW Web Site, NY Times:
"Google
has removed the German Web site of BMW from its Internet search index,
saying that the company was redirecting users from requested information to
another page selling luxury cars."

The Plaintiff (Salu) had obtained a high ranking
in search results generated from searches for products sold through
its website Skinstore.com. As one example, his website achieved a
ranking in or about fourth place for a search of the product name
“Hylexin”. Then the defendants started operating a website called
Newskinspa.com. The complaint alleges that defendants knowingly have
copied Salu’s web content to take over Salu’s high position in
search rankings. Since then skinstore.com no longer maintained its
high ranking when a search for the product “hylexin” is conducted
using the Google.com search engine. Instead, the website
“newskinspa.com” appeared in exactly the same place in the search
rankings that skinstore.com should appear. Upon information and
belief of the plaintiff, the Google search engine has identified the
www.newskinspa.com website as a substitute or update of the
www.skinstore.com website, and substituted the former in the
latter’s place in search rankings for this product. Salu claims he
faces a significant loss of its economic advantage and significant
loss of sales, as fewer prospective customers are able to find its
website through the operation of common search engines like
Google.com.

On June 24, 2005, Click Defense, a company which
provides software to keep track of Pay-Per-Click advertising, sued
Google Inc. in the US District Court in San Jose, claiming that the
search engine has failed to protect users of its advertising program
from "click fraud," costing them at least $5 million.

In December 2005, the company said in a statement it
wanted to withdraw as the lead plaintiff named in the lawsuit in order to focus
on its own business. "We remain a member of the class and our click fraud claims
against Google will still be litigated when and if the class is certified."
Scott Boyenger, Click Defense's Chief Executive Officer is quoted. AIT, a $34
million-a-year Internet service provider serving customers in the mid-Atlantic
states and the Carolinas, said it plans to take over as lead plaintiff.

A hearing on the motion for class certification in the
Google click fraud case has been scheduled for May of 2006.

December 9, 2005:
Click fraud suit changes hand, The Register:
"Click Defense, a web analytics firm that intiated proceedings against
Google in June, alleging that the search engine was failing to stop click
fraud, is to be replaced as lead plaintiff in the suit by web hosting firm
Advanced Internet Technology (AIT)"

M. Adams of nimzoservices.com has been slowly
increasing the AdSense revenue for some German web sites over the
last few months. Last week he sent e-mails to the operators
demanding money for his "service" in the future. If they choose not
to comply he would increase the clicks so that Google would take
notice and possibly cancel the website owner's AdSense account.

Loose translation of the e-mail:

Dear Mr. XY,

you probably have
noticed an increase in your AdSense revenue during October. This is a direct
result of us including your website in our test program.

For details see
www.nimzoservices.com.

As you can learn
from your latest payments from Google, our concept works very well. We have
about 1000 German employees to test web sites...

With their help
we are able to increase the number of web site visitors and income from
advertising.

We are also able
to "destroy" AdSense accounts by increasing the click rate so that Google will
notice it and delete the account.

As you surely can
understand, we want to participate in the revenue increase. So far we have no
contractual relations. There are two options for you:

You reject our
offer and refuse to pay us money. In this case we will stop our activities.
However, you risk loosing your latest revenue and your AdSense account.

You accept our
offer and pay us 50% of the increased revenue. We then will continue to slowly
increase the revenue.

I believe it is
an easy decision for you. The second alternative is a win-win situation for both
of us.

Please let us
know your decision immediately.

Regards

M. Adams
(www.nimzoservices.com)

The case was discussed in more detail in the
abacus forum. Google has been notified by several webmasters and they have
already tracked down a Mr. Lutzenberger as the real person behind the scam.

12/05 - Regulating Search?: A Symposium on
Search Engines, Law, and Public Policy

The Information Society Project at Yale Law
School presented "Regulating Search?: A Symposium on Search Engines,
Law, and Public Policy," the first academic conference devoted to
search engines and the law on December 3, 2005 at Yale Law School in
New Haven, CT. The symposium brought together technologists,
policymakers, entrepreneurs, executives, lawyers, computer
scientists, and activists to discuss the emerging field of search
engine law. More information on the conference can be found at
http://islandia.law.yale.edu/isp/regulatingsearch.html. Eric
Goldman posted some notes he took at the conference in his
Technology and Marketing Law Blog.

11/05 - Google Print - copyright infringement
by scanning books?

Five publishing houses -
McGraw-Hill, Pearson Education and Penguin Group (USA), Simon & Schuster and
John Wiley & Sons - filed a suit in New York against Google Print.
Under the program, Google plans to scan and index
millions of copyrighted books taken from the collections of the three
universities Harvard, Stanford and Michigan. The suit seeks a declaration
that Google infringes on the publishers' copyrights when the Web search leader
scans entire books without permission of copyright owners. Google claims, that
the scanning of the full text of the books is necessary to create a searchable
catalogue of the books located within the libraries' collections.
Only snippets of copyrighted works will be available
through the search engine. There are no plans to make full copies of
copyrighted works available without their owners' permission.
In September, the Authors Guild joined with three US writers - Herbert Mitgang,
Betty Miles and Daniel Hoffman - to file a similar lawsuit. The Authors Guild
filing was a class-action lawsuit that seeks damages, the publishers' suit seeks
a declaration that Google is committing copyright infringement by scanning books
(also
see
Update 33)

October 20, 2005: Sherriff,
Lucy,
Publishers join forces to sue Google, The Register:
"The Association of American Publishers (AAP) is suing Google over its plans
to make scans of millions of books available online."

October 19, 2005: Italie,
Hillel,
Publishers Sue Google Over Scanning Plans, ABC News:
"Just weeks after a leading authors' organization sued Google for copyright
infringement, the Association of American Publishers has also filed suit
against the search engine giant's plans to scan and index books for the
Internet."

11/05 - Google rebrands its free GMail web
service in the UK

Google voluntarily dropped the
Gmail brand in the UK following a trademark dispute with Independent
International Investment Research (IIIR) ,who has been using the "G-Mail" name
for its Pronet subsidiary's Web-based e-mail product since May 2002.

Although Google replaced "Gmail"
with "googlemail" in Great Britain, a lawsuit is still looming:
Shane Smith, chairman and chief executive
of Independent II Research, asserts that the dispute about the ownership of the
rights to Gmail is by no means over, because Google's decision to change the
name of its email services to Google mail relates solely to the UK. IIIR
announced it would still pursue Google for damages and that it
expected the US search engine to drop Gmail worldwide.

Earlier this year, Google lost
the right to use Gmail in Germany, following a dispute with Daniel Giersch, who
had registered 'Gmail - und die Post geht richtig ab' with the German Patent
Office in 2000.

October 19, 2005: Leyden,
John,
Google loses its G-spot, The Register:
"A trademark dispute has forced Google to re-brand its Gmail web mail
service in the UK. Existing users get to retain their Gmail address (at
least for now) but from Wednesday onwards new UK users will be given a
Googlemail email address instead."

The Authors Guild, which
represents 8,000 authors in the United States, has filed a class-action
copyright infringement
lawsuit [PDF] against Google in the Southern District of New York because of
its Google Print program that makes books and other offline information
searchable online. Google has contracted with several public and university
libraries to create digital archives of the libraries' collections of books. The
suit alleges that by reproducing a copy of these works that are not in the
public domain, Google is engaging in massive copyright infringement.

“This is a plain and brazen
violation of copyright law,” said Authors Guild President Nick Taylor. “It’s not
up to Google or anyone other than the authors, the rightful owners of these
copyrights, to decide whether and how their works will be copied.”

In a
first reaction, Google regrets "that this group chose to sue us over a
program that will make millions of books more discoverable to the world --
especially since any copyright holder can
exclude their books from the program." Google also did point out, that its
programm "doesn’t show even a single page to users who find copyrighted books
through this program (unless the copyright holder gives us permission to show
more). At most we show only a brief snippet of text where their search term
appears, along with basic bibliographic information and several links to online
booksellers and libraries."

September 21, 2005:
Orlowski, Andrew,
Authors sue Google, The Register:
"The Authors Guild, along with a former US poet laureate, is suing Google
for copyright infringement."

A Hamburg court temporarily
ordered Google to change the name of its Gmail product in Germany, after Google
was sued by Giersch Ventures. Now the product is called "Google Mail" in
Germany, pending the outcome of that trial (also
see Update 30). Now Google is facing yet another GMail lawsuit, this time in
Great Britain: After 15 months of negotiations with Google, Independent
International Investment Research, who has been using the "G-Mail" name for its
Pronet subsidiary's Web-based e-mail product since May 2002, has been unable to
reach a settlement with Google on use of the trademark and may sue the search
engine.

September 12, 2005:
Costello, Miles,
New legal threat to Google over GMail, Times Online"Google, the internet search engine, is facing
a renewed threat of legal action from a company that claims to own the
intellectual property rights to its GMail e-mail service."

8/05 - Google wins click fraud-case

In November 2004 Google filed a suit
against Auctions Expert International LLC claiming that the Houston-based companyartificially and/or
fraudulently" generated clicks on the ads Google served to the company's Web
site. Auctions Expert, like other AdSense publishers, received a share of
pay-per-click revenue when visitors clicked on the ads on the Auctions Expert
page. According to Google, Auctions Expert hired dozens of people to click on
the site's ads.

In May Google quietly won a
$75,000 judgment in this case.

July 5, 2005: Davis, Wendy,
Google Wins $75,000 In Click Fraud Case, MediaPost Publications:
"GOOGLE QUIETLY WON A $75,000 judgment in May in a click fraud case against
former AdSense participant Auctions Expert International and its two
founders."

November 22, 2004: Olsen, Stefanie,
Google gets gruff over click fraud, CNet:
"Google filed a lawsuit against an Internet operation that it claims
systematically clicked on text ads to defraud its advertising network."

8/05 - Click Defense sues Google
because of Click Fraud

On June 24, 2005, Click Defense, a
company which provides software to keep track of
Pay-Per-Click advertising, sued Google Inc. in the US
District Court in San Jose, claiming that the search engine
has failed to protect users of its advertising program from
"click fraud," costing them at least $5 million.

Google's AdWords program permits Google's
advertising customers to purchase advertising links
associated with certain keywords. Google posts the links on
the margins of its search engine results pages based on
whichever keywords appear in user queries posted to Google's
Internet search engine. Google's advertising customers pay
Google based on the number of Internet users who click on
these advertising links. Click fraud (or Click Spamming) is
the term, the industry uses to describe when someone clicks
on a search advertisement with an ill intent and with no
intention of doing business with the advertiser. Click fraud
is a growing problem in the search engine business (some
analysts believe as many as 20% of clicks are fraudulent),
and involves competitors clicking repetitively on ads,
hiring others to do so, or using automated programs (robots)
for this purpose, in order to keep companies from
effectively using competitive keywords.

In the complaint, Google, which derives
99% of its revenue from Adwords, is accused of breach of
contract, neglicence, unjust enrichment and unfair business
practices:

Google breached its contract with Plaintiffs by
collecting fees for clicks even though Google knew, or should have
reasonably known, that the clicks were not actual clicks, but rather
purposeful clicks made for an improper purpose

Google has breached its duty to monitor its AdWords
program for click fraud and to protect plaintiffs from click fraud

Google's conduct violates the California Business &
Professions Code § 17200 ("unfair competition shall mean and include any
unlawful, unfair or fraudulent business act or practice.")

June 30, 2005:
Click fraud lawsuit targets Google, CNet:
"A seller of online marketing tools said Wednesday it
sued Google, charging that the Web search giant has
failed to protect users of its advertising program from
click fraud, costing them at least $5 million."

8/05 - Google sued for overcharging

Google
has been sued for overcharging in AdWords for the third time (the first
lawsuit was brought by a consortium of advertisers led by Lane's
Collectibles, see
Update 30, the second by Click Defense). The suit, filed by CLRB
Hanson Industries LLC and others, in Santa Clara Superior Court accuses
Google of charging advertisers more than the daily limits that the
system lets advertisers choose. The
complaint has been filed on August 3, 2005 (CLRB Hanson Industries
LLC v. Google, Inc., Case No. 1-05-CV-046409).

August 10, 2005,
Lawsuit claims Google overcharges advertisers, The Register:
"A group of advertisers last week filed a class action suit against
Google, accusing the search engine of overcharging advertisers who
use its paid search advertising services."

6/05 - Google accused of having a political
bias for the Democratic Party

On June 9, 2005 Google banned a previously
approved online ad campaign for the new book "Their Lives: The Women
Targeted by the Clinton Machine", that documents abuses of power by
Bill and Hillary Clinton. According to the author, “Google's
decision to reverse its prior approval and shut down this banner ad
campaign reeks of political bias. The company's liberal leanings are
pretty widely known, but this example of blatant editorial
censorship is still shocking.” In his press release he also points
out that Google still displays ads disparaging current Republican
officials with headlines such as "Hate Bush? So Do We," “Bush
Belongs Behind Bars,” and "George W. Bush Fart Doll." A Google
spokesman said that the decision was based on Google's policies,
that prohibit ads against an individual (Ad text advocating
against any organization or person (public, private, or protected)
is not permitted. Stating disagreement with or campaigning against a
candidate for public office, a political party or public
administration is generally permissible. This standard applies to
everyone who wants to advertise on Google, whether we agree with
their viewpoint or not.), not on their political views. He also
indicated that only some of the submitted ads were denied and
that the approved ads are still running.

June 13, 2005: Richardson, Chris:
Author Blames Google For Ad Censorship, Web Pro News:"Once again
failing to understand the Google AdWords TOS agreement, another person is
attempting to make a misguided connection between an AdWords campaign denial
by Google and a liberal political bias."

5/05 - "G-mail" becomes "Google Mail" in
Germany

Google has changed the name of their German
email service, because Daniel Giersch owns the rights to "G-Mail" in Germany and
has no plans to release the naming rights to Google.
Google will now call the German service "Google Mail".

The website froogles.com -
registered in December
2000 by Mr. Wolfe- seeks
to attract "frugal" shoppers by offering a wide variety of quality
merchandise at discounted or sale prices. In 2002 Google launched a comparison-shopping
site of its own, called Froogle.com. In Google's pending application
to register the mark FROOGLE in the United States Patent and Trademark
Office ("PTO"), Mr. Wolfe filed a Notice of Opposition on March 24, 2004,
thus angering Google.

Google asked an arbitration panel
of the ICANN (the domain name organization) to not allow to use the domain
because it was "confusingly similar" to Google. The panel ruled in Wolfe's
favour. According to the panel, the froogles.com domain name
is not confusingly similar to the GOOGLE mark. The dissimilar letters
in the domain name are sufficiently different to make it distinguishable
from the GOOGLE mark because the domain name creates an entirely new word
and conveys an entirely singular meaning from the mark. The decision can be
found at:
http://www.arb-forum.com/domains/decisions/275419.htm.

Google now has filed suit against
Froogles in U.S. District Court in Brooklyn alleging trademark infringment.
In the suit, Google claims that it is the "senior user of marks that
incorporate the formative " -- OOGLE" for Internet search services."

The parliamentary
group of the Greens in the Bundestag, the lower chamber of Germany's federal
parliament published a booklet called "Suchmaschinen:
Das Tor zum Netzd"
("Search Engines: The Gate to the Net"). The Greens want to remind the search
engine operators of the "great responsibility" they bear and demand that they
clearly disclose sponsored results.

In the opinion of
the Greens it is also very important to strengthen alternatives to the current
market leader Google.

March 21, 2005:
Greens warn against sides effects of search
engines, Heise:"The parliamentary group
of the Greens in the Bundestag, the lower
chamber of Germany's federal parliament, is
especially worried about the "googleising" of
society and current trends in the area of search
engines".

The future of
aggregated news sites supplied by internet companies such as Google was
called into question: The French news agency AFP (Agence France-Presse) is
suing Google Inc. before the U.S. District Court in Washington, D.C., for
pulling together photos and story excerpts from thousands of news Web sites.
AFP said the "Google News" service infringes on AFP's copyrights by
reproducing information from the Web sites of subscribers of the Paris-based
news wholesaler and is seeking $17.5m in damages and wants an injunction
issued against Google to stop showing its news items in the first paragraph
of its news feeds.

AFP alleged
that Google has ignored requests to cease and desist from infringing its
copyright work. AFP's own Web site includes a "robots.txt" file that spurns
search engines, telling them to avoid indexing its news pages. But things
are quite more complicated than that, because the stories Google used came
not directly from AFP but from its subscribers, some of which might want the
rest of their sites indexed to generate ad-boosting referrals.

Google says it
has begun removing AFP's stories from its news aggregation site.

March 21, 2005:
Agence France Presse sues
Google, ZDNet:
"The
search giant is being sued by the French news
agency due to the unauthorised reproduction of
photos, headlines and story leads on Google
News."

Google has included a feature on its newest toolbar, (Toolbar 3 Beta) that
adds links to websites viewed when using the toolbar (the so called
Auto-Link Feature). For now, Auto-Link works in four categories: street
addresses (whisking you to Google Maps by default, but you can switch to
MapQuest or Yahoo Maps); ISBN numbers (linking to Amazon.com); package
tracking numbers (pointing to DHL, FedEx, United Parcel Service and the U.S.
Postal Service); and vehicle identification numbers (hyperlinks to
CarFax.com.) Why only this collection of items? Because they can be reliably
identified and have only one correct match. Google won't try to link
"Stephan Ott" to any website as there are more people with the name out
there and the author of Links & Law might not be the person most webusers
are looking for (although they should :-)

The Search Engine
Journal has a very good example of the consequences this might have: If a
web-user was to try to purchase a book from Barnes and Nobel, the second
largest online bookseller, while using the new toolbar, a link to rival
Amazon.com would be added to the view's version of the Barnes and Noble site
as soon as the book's ISBN appeared.

AutoLink rises some legal questions: Does Google have the right to add links
to pages authored by others thus modifying the content. In my point of view
too much fuss about nothing: Users can decide whether they want to use the
new feature and Google's technology will not override existing links. Users
can disable AutoLink with a single mouse click.
(For a closer look at the legal issues see Goldman, Eric:
Google's AutoLink tool,
Eric Goldman Blog).

AutoLink does not involve financial or advertising deals so far and is
designed simply as a convenience

February 27, 2005:
Is Google AutoLink really evil?, WebProNews:
"Google released their new tool bar this week
that has raised the ire of savvy Web surfers and
bloggers. The toolbar includes a feature that
adds links to various words and phrases."

The American Chemical Society(ACS) filed a complaint on Dec. 9 against Google Inc. in
the U.S. District Court for the District of Columbia. The complaint contends
that Google's use of the trademark "Scholar" for its Google Scholar
literature-search engine constitutes trademark infringement and unfair
competition. Google has launched the new Google Scholar search
service in November 2004, providing the ability to search for scholarly
literature located across the Web. ACI has its own six year old research
tool designed for academic scientists, called SciFinder Scholar. About 1,000
colle

ges and universities have bought
the service, which provides access to all of CAS's databases, including
information on journal and patent references, substance information,
regulated chemicals, chemical reactions, and chemical supplier information.
So is it all about Google Scholar is free, SciFinder is paid? ACS can't sue
Google for making information free, but they can sue for trademark
infringement...

n
"adult" magazine and Web Site has filed
a lawsuit in a Los Angeles Court against
Google. Google’s search results pull up
photos of Perfect 10's nude female
models on websites that have no licence
to do so.
So the suit alleges that the "search
engine giant provided Internet users
with at least 800,000 unauthorized links
to images of Perfect 10’s nude models,
stealing membership fees and advertising
revenue from the Los Angeles publisher."

A letter from
Perfect 10 to Google demanding the
removal of specified links can be fo

Yahoo,
Google and several other major websites
and companies have been hit with a
lawsuit saying they carry online
gambling ads in violation of California
law. The lawsuit demands that the
companies stop accepting advertisements
based on searches for terms such as
"illegal gambling," "Internet gambling"
and "California gambling."

Stelor
Productions, the company that owns
and operates
Googles.com, has launched
trademark proceedings with the U.S.
Patent and Trademark Office against
Google. The complaint alleges that
the ubiquitous search engine site is
in breach of copyright laws by
offering services aimed at children.
Stelor also charges that Google's
mark is confusingly similar to its
own, and is opposing Google's
trademark application to cover a
"long list of 'Google' goods and
services, including children's
books, stickers and children's
clothing." Googles, which is
mostly concerned with Google's new
Froogle price matching service,
ultimately wants Google to keep its
name away from children's content,
merchandise and services.

In
July 2004
Google added a new feature
to its toolbar that allows users
to navigate the Web by typing in
a name instead of a URL. Now, to
search, you simply type the name
or description of the site
you're looking for. If there's a
strong match, Google will go
straight to that page. If users
type in a name that isn't
specific or well recognized, the
toolbar automatically performs a
Google search on the subject,
giving users a choice of
destinations to choose from, the
company said.

July
15, 2004: Sherman, Chris,
Google Toolbar Adds Keyword Browsing to Internet Explorer,
Searchenginewatch:
" Google has added a keyword based browsing feature to its toolbar, allowing
users to type words rather than URLs into the Internet Explorer address bar
and automatically see the "most relevant" site for those terms."

Google's spell checking software
automatically looks at your
query and checks to see if you
are using the most common
version of a word's spelling. If
it calculates that you're likely
to generate more relevant search
results with an alternative
spelling, it will ask "Did you
mean: (more common spelling)?".
So far so good. But did you ever
search for legal movies on
Google? No? Well, try
Google Germany and search
for "legaler filmdownload"
(means legal film download). The
result is quite surprising.
Google knows what users really
want: Google comes up with the
question: Did you mean
"illegaler filmdownload" :-)